Implementing §404: The View From the Justice Department
Editors' Summary: The principal federal program for protecting wetlands is found in §404 of the Federal Water Pollution Control Act. Section 404 prohibits the discharge of dredged or fill material in the waters of the United States without a Corps of Engineers permit and also empowers EPA to set standards to guide the Corps' issuance of permits. The Department of Justice has played an active role in implementing §404, both in enforcing the permit program requirements and in defending the government's regulations and permit decisions against challenges from environmentalists and regulated landowners. In this Article, the Assistant Attorney General for Land and Natural Resources provides an overview of the forces that have shaped the program and the cases that his office has litigated. He sees the source of a number of controversies in the combination in one program of sometimes inconsistent navigation and environmental values. Finally, he analyzes current §404 issues in light of the program's history and the central Justice Department policy of advocating judicial restraint.