Federal Wetlands Protection under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform

摘要

Currently, regulation is the principal source of wetlands protection, and the chief regulatory program is a federal one, authorized by section 404 of the Clean Water Act. Section 404 has always been controversial. To its critics, the 404 permit program represents an unprecedented federal presence in land use regulation. To its defenders, it remains the most effective means of preserving the nation's diminishing wetland resources. The most troublesome questions concerning the program's jurisdictional scope, permit criteria, and enforcement are the consequence of a long-held regulatory ambivalence on the part of the permit-issuing entity. The authors evaluate the 404 program, its history, its operation, and its future. Whereas they suggest a number of administrative reforms, they reluctantly recommend that Congress relieve the Corps of Engineers of its permit-issuing responsibilities.