In November 1989, the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) signed a Memorandum of Agreement¹ on requirements for mitigating losses to wetlands under §404 of the Federal Water Pollution Control Act (FWPCA).² The Memorandum's goal of "no net loss" of wetlands was openly endorsed by the Bush presidential campaign but had not since been made a written policy. The Memorandum set off a firestorm. Originally intended to take effect within 60 days, the Memorandum was delayed twice by the White House³ and finally amended⁴ in ways that will continue to make mitigation requirements under the §404 program unclear and render a national policy of no net loss less attainable than ever.

What the Secretary of the Army and the Administrator of EPA learned in this process is that §404 is the environmental regulatory program least susceptible to agreement. Section 404's requirement that the Corps permit dredge and fill in the nation's waters provides a recipe for endless conflict between those who would protect what is the United States' most productive and endangered ecosystem—its wetlands⁵—and those who would exercise their most fundamental economic right — to develop the land they own. These conflicts are not restricted to the giants of manufacture and industry. They arise nearly 10,000 times a year⁶ in permit applications for shopping centers and marinas, soybean fields and golf courses, roads, dams, industrial parks, and condominiums with that most valued asset inAmerican real estate: a view of the water.⁷