Regulation of Wetlands and Waters of the United States

Author:Stephen M. Johnson
Pages:72-151
72
Chapter 4
Regulation of Wetlands and Waters of
the United States
I. Activities Regulated Under the Clean Water Act
A. The Rivers and Harbors Act
Clean Water Act, federal regulation of wetlands
was generally limited to regulation under the Rivers
and Harbors Appropriation Act of 1899, 33 U.S.C.
§ 401, et. seq. Section 10 of the Act prohibits
obstruction of navigable waters except in
accordance with a permit issued by the Corps of
Engineers, see 33 U.S.C. § 403, and Section 13 of
the Act prohibits the deposit of refuse into the
navigable waters. See 33 U.S.C. § 407. As
explored further later in this chapter, though, the
main focus of the statute was, and remains,
protection of navigability of the nation’s waters.
The statutory definition of “navigable waters” is
driven by that focus, ands limited to waters that are
“subject to the ebb and flow of the tide and/or are
presently used, or have been used in the past, or may be susceptible for use to transport
interstate or foreign commerce.” 33 C.F.R. § 329.4. As a result, very few wetlands were or
are regulated as “navigable waters” under the Rivers and Harbors Act.
B. The Clean Water Act
When Congress adopted the Federal Water Pollution Control Act Amendments of 1972,
though, it greatly expanded federal regulation over a broad range of activities in wetlands
and other waters, with a focus on protecting water quality rather than protecting navigation.
See 33 U.S.C. § 1251(a) (providing that the objectives of the Act are to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters”). Indeed, in
the Act, Congress established, as a national goal, “that the discharge of pollutants into the
navigable waters be eliminated by 1985.” Id. § 1251(a)(1).
Photo 18 Corps of Engineers photo -
http://commons.wikimedia.org/wiki/File:Two
_Harbors_Minnesota_aerial_view.jpg
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Section 301: Perhaps the most important provision of the statute, for purposes of federal
regulation of wetlands and other waters, is Section 301, which prohibits “the discharge of
any pollutant by any person” except in compliance with Section 301 and with several other
sections of the statute, including the sections that create the federal permitting programs for
point source discharges and discharges into wetlands. 33 U.S.C. § 1311(a). The statute
further defines “the discharge of a pollutant” to mean the “addition of any pollutant to
navigable waters from any point source”. 33 U.S.C. § 1362(12).
As a result, Section 301 requires permits and compliance with the other requirements of
Section 301 for an activity if all of the following requirements are met:
402 and 404 Permit Programs: The Clean Water Act creates two separate permit
programs to regulate discharges of pollutants into navigable waters. While the Section 402
permit program, administered by EPA and the states, is the primary permitting program for
point source discharges of pollution into the navigable waters, see 33 U.S.C. § 1342, most
activities involving wetlands are governed by the Section 404 permit program. See 33
U.S.C. § 1344. Section 404 authorizes the Corps, rather than EPA, to issue permits when
the regulated activity involves the “discharge of dredged or fill material into the navigable
waters at specified disposal sites. 33 U.S.C. § 1344(a), Nevertheless, EPA plays an
important role in that permitting process, see 33 U.S.C. § 1344(b)-(c). In order for the
federal government to have Section 404 jurisdiction over an activity in wetlands, therefore,
there must be a “discharge of dredged or fill material” into “navigable waters.”
When wetlands are ditched, drained, filled or otherwise altered, several of the pre-
requisites for regulation under sections 301 and 404 are easily met.
Triggers for Section 301 prohibition
there is an addition
of a pollutant
from a point source
into the navigable waters
by a person
Triggers for 404 Jurisdiction
there is a discharge of dredged or fill material
into the navigable waters
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Point source: For instance, the Clean Water Act defines
“point source” very broadly as “any discernible, confined and
discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which
pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
Ditching, draining, or filling activities in wetlands usually
involve heavy construction equipment, such as backhoes,
excavators, or loaders, which clearly are “discernible,
confined and discrete
conveyances.”
Pollutant: Similarly, the statute defines “pollutant” to
include “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste
discharged into water.” 33 U.S.C. § 1362(6). Normally,
activities impacting wetlands involve the placement, in
wetlands, of rocks, soil, silt, organic debris or similar
materials, all of which fit comfortably within the definition
of “pollutant.”
Person: The statute also defines “person” very broadly to include “an individual,
corporation, partnership, association, State, municipality, commission, or political
subdivision of a State, or any interstate body.” 33 U.S.C. § 1362(5). As a result, when
wetlands are ditched, drained, filled or otherwise altered, it is normally not very difficult to
demonstrate that the activity was undertaken by a “person.”
Consequently, whether Section 301 prohibits ditching, draining, filling or otherwise
impairing wetlands usually depends on whether the activity at issue involves an addition of
a pollutant and whether the wetlands at issue are navigable waters. Similarly, whether the
federal government has jurisdiction under Section 404 over such activities impacting
wetlands usually depends on whether the activity involves a discharge of dredged or fill
material and whether the wetlands at issue are navigable waters. Section II of this
Chapter examines the scope of the federal government’s jurisdiction over navigable
waters at length, and Chapter 5 focuses on which activities in wetlands have been held to
involve the addition of pollutants or the discharge of dredged or fill material.
As Section II of this Chapter will describe, the Corps and EPA have defined the statutory
Photo 19 B frankenstoen (Flickr:
backhoe)
http://commons.wikimedia.org/wi
ki/File:Case_backhoe_loader.jpg
[CC-BY-2.0]
Photo 20 USFWS Photo
http://commons.wikimedia.org/wiki/
File:Rolling_fill_material.jpg

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