CRS-77 



established by the FWPCA extended to "navigable waters" which were defined broadly 



in Section 502(7) as "the waters of the United States, including the territorial 



seas." The effect of this broad definition was to transform Section 404 



from a restatement of Corps authority to protect navigation with 

 the addition of EPA water quality oversight to a provision vesting 

 the Corps with responsibility for permitting all dredge and fill 

 activities occurring in "waters of the United States." 82 / 



From a water quality standpoint, the concern with dredged or fill material is to 

 prevent contaminated or noncontaminated material from diminishing water quality 

 or disrupting aquatic life, particularly in biologically sensitive areas such 

 as wetlands. 



At the same time that the amendments of 1972 were being debated, Congress 

 was considering national land use legislation. Some viewed the wetland pro- 

 tection question as essentially one of land use, one in which wetlands were a 

 special type of land and should receive special treatment in any general ap- 

 proach to land use planning and management. If national land use planning 

 legislation had been enacted, wetland protection probably would have taken a 

 different form. Many analysts who might have wanted to see wetlands protected 

 under a land use approach were able to see that for the most part they were 

 protected under a water quality program, which provided a different set of 

 opportunities and limitations. One analyst observed that "Because of the pro- 

 gram's [section 404] close relationship with land use practices adversely 

 affecting water quality, critics contended that it represented an unprece- 

 dented Federal presence in land use matters." 83 / 



82 / Myrhum, Christopher B. Federal Protection of Wetlands through Legal Pro- 

 cess. Boston College Environmental Affairs Law Review, v. 7, no. 4, 1979. p. 595. 



83/ Blumm, Michael C. The Clean Water Act's Section 404 Permit Program 

 Enters Its Adolescence: An Institutional and Programmatic Perspective. Ecology 

 Law Quarterly, v. 8, no. 3, 1980. p. 412. 



