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Federal Wetlands Law: Part I

April 1993

Citation: 23 ELR 10185

Issue: 4

Author: Margaret N. Strand

Editors' Summary: No single federal law comprehensively addresses wetlands protection. Rather, federal laws and regulations addressing activities and interests in wetlands have evolved with water law in general, and with other laws, such as those specifically targeting agriculture and coastal zone programs. The result is a complex federal regulatory structure that spreads jurisdiction among EPA, the Army Corps of Engineers, and other federal agencies. This lack of a unified federal approach to wetlands has created uncertainty and frustration for all interested parties, including landowners, developers, corporations, environmentalists, legislators, and state governments. In turn, the uncertainty and frustration have led to interagency clashes over which manual to use for delineating wetlands, and to legislation being introduced in Congress that would unify in one statute the federal government's approach to wetlands. For the time being, EPA and the Corps have agreed to use the 1987 Corps Manual for delineating jurisdictional wetlands. Congress, however, has been unable to pass a comprehensive wetlands law and prospects for such legislation passing in the 103d Congress are unpredictable. Thus, persons interested in wetlands must understand the existing federal approach to wetlands protection.

In this three-part series of Articles, the author comprehensively analyzes the laws and regulations that make up the federal government's approach to wetlands protection. In Part I, the author discusses the history and structure of the Clean Water Act, particularly § 404, which is the main federal statute governing activities in wetlands. She then explores jurisdictional issues of the § 404 program and how wetlands are identified. The author then analyzes what activities are regulated under § 404 and what activities are exempted from the strictures of § 404. Finally, she addresses nationwide and general permits under § 404.

Part II, planned for publication next month, will address individual permits under § 404, enforcement of § 404, judicial review of § 404 wetlands actions, the takings issue, and state § 404 program authority. Part III, planned for publication in June, will address other federal laws that address wetlands, which include programs under the Food Security Act and other coastal zone and natural resource protection laws. Part III will also analyze federal executive orders that pertain to wetlands and include a who's who of federal agencies involved with wetlands, providing pertinent agency descriptions, subdivisions, and addresses.

All three Parts of this Article, along with a subject matter index, a table of cases, and a host of pertinent regulatory documents, will be published in ELR's new Wetlands Deskbook.

Margaret N. Strand is a partner in the Washington, D.C., office of Eckert Seamans Cherin & Mellott. She was formerly chief, Environmental Defense Section, U.S. Department of Justice, where she supervised federal litigation concerning wetlands.

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