CRS-74 



FEDERAL PROGRAMS REGULATING ACTIVITIES IN WETLANDS 



Section 10 



While visible concern for wetland protection did not develop until the 

 past 15 or 20 years, the Corps of Engineers has been required since 1899 to 

 issue permits for dredge and fill activities and modification of waterways 

 under Section 10 of the Rivers and Harbors Act, commonly referred to as the 

 Refuse Act. 75 / As one authority noted, "The jurisdiction of this act was 

 essentially based on the necessity of maintaining the navigability of the 

 Nation's waterways." 76 / The Corps' jurisdiction was limited to navigable 

 waters under this provision and its primary concern was to prevent alteration 

 or obstruction of these waters. The courts and the Corps defined navigable 

 waters to be waters below the ordinary or mean high water level, or in coastal 

 regions, to the mean high tide level, plus adjacent wetlands. 77 / 



Thus the Corps confined its regulatory authority solely to activities 

 taking place below the mean high water line and/or waters that are presently 

 used, were used in the past, or are susceptable to use to transport interstate 

 commerce. This was called the area of navigable capacity, or navigable servi- 

 tude. The concept of past, present, or future navigable capacity is frequently 

 referred to as the traditional definition of navigability. Under this defin- 

 ition the Corps limited its review to activities that might obstruct some form 



75 / Section 10 requires a permit from the Corps of Engineers to build 

 any structure (dams, dikes, or bridges) in or over navigable waters, or the 

 excavating or filling of any lobe or channel in any navigable water. 33 USC 

 401 (1976). 



76 / Schneider, William F. Commentaries — Federal Control Over Wetland 

 Areas: The Corps of Engineers Expands its Jurisdiction. University of 

 Florida Law Review, v. 28, Spring 1976. p. 789. 



77/ 33 C.F.R. 209. 260(a)-(k) (1975). 



