Section 5 Wetlands

• Library: Environmental Law 2002 Supp Replacement chs

Section 404, 33 U.S.C. § 1344, of the federal CWA prohibits the discharge of dredged or fill material into “navigable waters” without a permit from the Army Corps of Engineers (Corps). Although the Corps takes the lead in issuing wetlands permits and otherwise regulating wetlands, EPA also has significant authority for wetlands regulation, including the power to veto certain Corps decisions. 33 U.S.C. § 1344(c). The federal government may impose civil penalties of up to $27,500 per day of violation for the unpermitted filling or dredging of a wetland. 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4 (civil monetary penalty inflation adjustment rule). The CWA also provides for the imposition of criminal fines and imprisonment for violations of § 404. 33 U.S.C. § 1319(c). An area generally is classified as a wetland when it has:

• hydrophytic vegetation

• hydric soils; and

• wetland hydrology

See 33 C.F.R. § 328.3(b); 40 C.F.R. § 230.3; see also US Army Corps of Engineers Wetlands Delineation Manual (Jan. 1987). The Corps of Engineers District Offices will provide definitive determinations as to whether specific areas...