Building A Balance: Wetlands Regulation Environmental Education Fact Sheet Wetlands protection has steadily gained national attention in the past two decades as America grapples with protecting its more than 100 million acres of wetlands in the continental U.S. and another 170 million in Alaska. Wetlands that function as individual aquatic systems are vital to environmental integrity because they contribute to habitat diversity, help cleanse polluted water, and can be an important factor in flood control. Wetlands are also beginning to be seen by some as natural amenities with an aesthetic value similar to trees or open space. Section 404 of the Clean Water Act requires permits for the discharge of dredged or fill material into "waters of the United States" and "wetlands." "Waters of the U.S." is defined broadly to include virtually all surface waters in the nation. "Wetlands" is defined broadly to include countless isolated pockets of land that oftentimes are too dry to meet the common-sense definition of the word. The program is jointly administered by the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA). The Corps issues the permit, while EPA maintains an oversight role with power to veto any permit. Section 404(g) allows qualified States to assume the Section 404 program and administer it for the federal government. Waters traditionally used for navigation by interstate and foreign commerce, however, remain under the control of the Corps and EPA. To date, only Michigan and New Jersey have accepted this responsibility, although several states have submitted or are currently considering submission of applications for assumption. There are two kinds of permits available under the Section 404 program: individual and general. Individual permits are issued for a specific activity in a specific location. Individual permits require extensive scrutiny, the preparation of reports and the completion of an alternatives analysis. Individual permits typically take over a year to obtain. General permits, on the other hand, are permits that authorize certain activities that involve minor alterations to wetland areas and that individually and cumulatively produce minor environmental impacts, such as installing utility lines. General permits are meant to provide an expedited permitting process. These permits allow developers around the country to perform similar activities without the delay that usually accompanies the issuance of individual Section 404 permits. General permits may be issued on a state, regional or nationwide basis. Since 1977, the Corps has issued a series of nationwide permits which are applicable across the country. Nationwide permits came about as the result of a mid-1970s lawsuit filed by the Natural Resources Defense Council (NRDC v. Calloway). With the ruling, the nation's water resources under regulation were expanded from traditionally navigable waters to "all waters of the U.S." The Corps of Engineers, recognizing that it did not have the resources to regulate every activity in all waters, created the nationwide general permit program, a streamlined program of regulation that would allow certain limited discharges under Section 404 for wetlands that were, by and large, of marginal environmental value. In 1977, the Nationwide Permitting Program (NWP) became part of the Clean Water Act under the 1977 Clean Water Act Amendments, showing that Congress endorsed the program as a way to provide administrative efficiency in activities that have minimal environmental impact. The most common nationwide permits used by the development industry are NWP 12 (utility lines), NWP 14 (minor road crossings), and NWP 26 (filling of isolated or headwaters wetlands unconnected to rivers, streams and waterways). The earliest version of NWP 26 allowed discharges in up to 10 acres of wetlands. In 1978, the Corps removed the acreage limitation on NWP 26 as a result of President Carter's Executive Order to make regulations less burdensome. Almost immediately, the National Wildlife Federation filed suit against the Corps, arguing that removing the acreage limitation would harm the environment. In 1982 as a result of that lawsuit, the Corps issued new regulations: the maximum acreage limitation of 10 acres was reinstituted; agencies such as the U.S. Fish and Wildlife Service, the Environmental Protection Agency and the National Marine Fisheries Service were required to be part of the decision-making process; and builders and developers using NWP 26 were told to file a pre-discharge notification with the Corps 20 days prior to filling for fills between one and 10 acres. In 1992, the NWP program was modified again, changing the pre-discharge notification to 30 days; requiring that those using the permit provide a wetlands delineation along with the request; and adding "discretionary mitigation." Mitigation requires compensating for the filling of wetlands through a financial contribution or the finding of a suitable wetlands restoration site on or near the development project. In 1996, the use of NWP 26 was modified again: acreage limits were reduced to between one-third of an acre and 3 acres; pre-discharge notification was increased to 45 days; wetlands mitigation was made mandatory; and NWP 26 could not be used in tandem with other NWPs. The Corps also announced that NWPs would be phased out and replaced with a set of so-called "successor permits" in 1998. In 1998, the Corps announced a series of activity-based wetlands development permits, or successor permits to NWP 26. One of the more notable permits allowed some limited flexibility on wetlands fills in master-planned communities, which utilize considerable environmental and land use planning. Soon after its introduction, however, the master-planned permit was revoked by the Corps. The Corps also placed restrictions on the use of NWPs in floodplains and certain waters of the U.S. To get a permit, an applicant must first obtain a jurisdictional determination which outlines wetlands boundaries on the property. Then the applicant must obtain state water quality certification for the permit. Water quality certification is required to show that the discharge will not cause or contribute to a violation of any applicable water quality standards. Once the water quality certification is obtained, the permit application is evaluated for compliance with the 404(b)(1) Guidelines, the substantive standards for permit review. Generally, the (b)(1) Guidelines require the applicant to prove that there are not practicable alternatives to filling the wetland (including purchasing non-wetland sites not owned by the applicant) and that the discharge will not cause significant degradation of the aquatic environment. Finally, the Guidelines require the applicant to provide mitigation to offset any environmental impacts of the discharge. Under Section 404, EPA and the Corps both have enforcement authority. The Corps typically takes the lead on enforcement actions involving unpermitted fills. Most of the enforcement of the Clean Water Act falls to the entities responsible for administering the program. However, Section 505 of the Act allows any citizen to commence a civil action against anyone who is thought to be in violation of an effluent limitation or other limitation impost by the CWA. Further, any citizen may commence a civil action against the Administrator for failure to perform any act or duty required under the Act. Section 505(d) allows the court to award costs of litigation to any prevailing party whenever the court determines such an award is appropriate. Developers and builders should always contact the nearest Army Corps of Engineers office prior to disturbing any area that might be considered a wetland, to determine if a permit is necessary. In obtaining permits from several authorities (i.e. federal, state, and local governments), overlapping jurisdiction may result in administrative problems. Ambiguities and inconsistencies in the various regulations may very well appear. If these problems cannot be resolved during the application process, the applicant's only recourse is to take special care in completing all applications properly. This may prevent problems or lessen their impact later on. As with the Endangered Species Act, protection of wetlands through the enforcement of CWA regulations has resulted in a great deal of controversy. Much of the debate stems from three particular issues: the lack of a universally agreed upon definition of what constitutes a wetland for purposes of regulation; a one-size-fits-all approach that regulates all wetlands as if they were all pristine, ecologically-sensitive waters; and regulations that, while ecologically worthwhile, infringe on property rights guaranteed under the U.S. Constitution. Scientists, Congress, and regulatory agencies have long grappled with defining wetlands. In the popular mind, wetlands consist of ponds, bogs, marshes, swamps, estuaries, or bottomland forests. The scientific definition, however, is highly technical and based on hydrology, soil condition, and the presence of specific types of vegetation. Application of the broad standards results in a much wider range of wet areas falling under the technical classification of wetlands. Another source of contention is the one-size-fits-all approach. Section 404 of the Act regulates all wetlands in the same manner, regardless of their relative importance in providing the functions and values attributed to wetlands. Many areas that are considered "wetlands" have little environmental significance, yet receive the same level of protection as pristine wetlands, for example. This uniform regulation of wetlands is in stark contrast to the widely held belief by members of the environmental, regulatory and development communities that some wetlands are more valuable than others, and thus deserve higher levels of protection. Section 404 of the CWA can severely restrict the filling of wetlands for development purposes. The conflict between enforcing the Act's water protection provisions and private property rights remains a thorny environmental issue. | 
