CRS-78 



Despite the geographic expansion afforded by Section 404 and the 1972 

 Amendments, some observers were concerned that the law lacked explicit incor- 

 poration of wetlands within the definition of "waters of the United States" in 

 order to provide similarly explicit protection for such areas. 84/ Moreover, 

 some persons expressed concern that the new water quality considerations 

 assigned to the Corps would clash with its traditional water resource develop- 

 ment and navigation responsibilities. 85 / 



Implementing Section 404 



After passage of the 1972 FWPCA, the Corps continued to operate its regu- 

 latory program under the same geographical limits that had been defined by the 

 courts for Section 10, that is, utilizing the traditional definition of navi- 

 gable water rather than the expanded concept of "water of the United States." 86 / 

 In final permit regulations issued in 1973, the Corps declared that its juris- 

 diction under both statutes was limited to waters lying within the traditional 

 test of navigability. 87 / The effect of this limitation was exclusion from 

 the Corps' regulatory program of such lands as marshes, swamps, bogs, salt mea- 

 dows, inland shallows, and many other coastal wetlands. 



However, a series of court decisions in 1974 and 1975 rejected the navi- 

 gational limits adopted by the Corps in favor of regulation and abatement of 

 pollution at its source. Most of these cases were resolved with individual 



84 / Myrhum, Federal Protection of Wetlands, p. 596. 



85/ Ibid., p. 586. 



86 / Frasca, Joanna M. Federal Control of Wetlands: The Effectiveness 

 of Corps' Regulations Under [Section] 404 of the FWPCA. Notre Dame Lawyer, 

 v. 51, February 1976. p. 509. 



87/ 33 C.F.R. 209.260(c) (1974). 



