The Clean Water Act and the CRMA provide for penalties for violations of their provisions (33 

 U.S.C. §1319; La R.S. 49:213.17). Both the Corps and CMD employ personnel to enforce those 

 provisions. The Corps employs an after-the-fact permitting system in which those who perform 

 activities without a §10 or §404 permit may obtain a permit after the work is completed if legal 

 considerations allow (P. Serio, U.S. Army Corps of Engineers, New Orleans, LA; pers. comm.). 

 CMD will issue after-the-fact permits only for activities performed in emergency situations (Clark, 

 pers. comm.). 



With the permitting and regulatory framework discussed in the previous section in mind we will 

 now examine in more detail some of the complex legal issues and statutory interpretation on which 

 the system operates. Later we will discuss some of the major policy concerns that drive these 

 decisions. 



LEGAL AND REGULATORY REVIEW 



Federal Regulation 



Two of the main Federal statutes are §10 of the Rivers and Harbors Act of 1899 and §404 of 

 the Clean Water Act, both administered by the Corps. 



Section 10 of the Rivers and Harbors Act of 1899 prohibits the creation of any obstruction, 

 excavation (dredging), or filling in a navigable water of the United States (33 U.S.C. §403). For 

 §10 purposes, navigable waters are defined as "waters of the United States that are subject to the 

 ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or 

 have been used in the past, or may be susceptible to use to transport interstate or foreign 

 commerce" (33 C.F.R. §§32 1.2(a), 322.2(a) and 329.4). The jurisdiction applies to artificial as well 

 as natural water bodies throughout the State. 



A §10 permit would be required for any marsh management practices using a dam or weir or 

 other structure or work in navigable waters. Such permits are susceptible to objection by the 

 DSL based on the prohibition in the Louisiana Constitution against the alienation of State water 

 bottoms. The Corps withdraws §10 permits on the basis of such objections (R. Ventola, U.S. Army 

 Corps of Engineers, New Orleans, LA; pers. comm.). 



Section 301 of the Clean Water Act prohibits the discharge of any pollutant into waters of the 

 U.S. except under permit issued by the EPA (33 U.S.C. §1311). However, in the case of the 

 discharge of dredged or fill material into the waters of the United States, the Corps is the 

 permitting agency in accordance with §404 of the Clean Water Act (33 U.S.C. §1344). The 

 definition of waters of the United States for §404 purposes is broader than the §10 definition. It 

 includes, in part, waters which are used or have been used or are susceptible to use in interstate 

 or foreign commerce, waters (including wetlands) the degradation of which could affect interstate 

 or foreign commerce, and wetlands that are adjacent to such waters. All waters which are subject 

 to the ebb and flow of the tide are considered to meet the interstate or foreign commerce use test 

 (33 C.F.R. §328.3). The definition of navigable waters under §404 is very broad and covers almost 

 any body of water affecting interstate commerce, except certain isolated waters and including 

 isolated wetlands. A considerable amount of litigation has occurred in the battle to delineate the 

 scope of the definition of adjacent wetlands (See for example U.S. v. Riverside Bayview Homes Inc. 

 474 U.S. 121 (85)) and to determine the level of effect on interstate commerce required to include 

 isolated wetlands in §404 jurisdiction. It is unlikely that any significant areas of wetlands in 



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