CRS-10 



WETLANDS LAW 



Issue 1 



Should the area covered under the present section 404 program be reduced? 

 Legal Interpretations of the Clean Water Act (FWPCA) have extended jurisdiction 

 to waters of the United States (see Chapter V), and the Corps has consequently 

 expanded the geographic scope of its regulatory program (see Chapter III). The 

 desirability of applying dredge and fill permit requirements to such an exten- 

 sive area, beyond the traditional navigable waters and adjacent wetlands, is 

 in question. Proponents of narrowing the scope of section 404 argue that the 

 current program is overly intrusive in private land use decisions, while oppon- 

 ents respond that valuable wetlands would be left unprotected by such a change. 



Pro 



Proponents of narrowing the scope of section 404 argue that the present 

 jurisdiction is too extensive. The resulting regulatory program is an undue 

 intrusion into traditional economic activities, including farming and harvesting 

 of timber, and into local land use planning. If these local and private activ- 

 ities are restricted, the land owner is denied use of his land. The section 404 

 program has become a form of Federal land use control in some areas, rather 

 than a water pollution control measure, as envisioned when enacted in 1972. In 

 addition, this provision, as applied, does not except wetlands that may have a 

 reduced value because they are small or have been created incidental to other 

 activities. The result is a lack of regulatory flexibility which has caused 

 numerous project delays and alterations that can be measured in economic costs 

 that outweigh the apparent values of the wetlands that are protected. 



Limiting the scope of the program to waters considered to be traditionally 

 navigable, or capable of being made navigable (i.e., Phase I waters under the 



