Wetland in the United States

Wetland in Environmental Law

A locale distinguished by shallow water or saturated soil that supports aquatic plants, wildlife, and fish. Some wetlands contain saltwater; others are freshwater wetlands. Various names are used to describe them, and some indicate the wetland’s characteristics. They include marshes, fens, swamps, bayous, bogs, tundra, mud flats, mangroves, and prairie potholes.

Wetlands tend to be near open waters, such as those found around lakes, rivers, streams, and coasts. Prairie potholes are usually nonadjacent wetlands, and they may be saturated with water only for short periods of time during the year. Wetlands support an abundance of life, including birds, plants, fish, and other wildlife. They serve as flood control systems, reduce erosion, purify water, and provide water supply. They are breeding grounds and nurseries for species that do not remain, as well as permanent habitats for many. Wetlands are home to a third of the species listed as endangered or threatened.

In the United States, wetlands were once thought to be useless land. The Fish and Wildlife Service estimates that approximately 100 million acres of wetlands have been eliminated through draining, filling, and damming. Construction projects requiring filling of wetlands were encouraged. Much of the filling was done for agriculture, fisheries, and construction.

Scientists then began to understand the significance of wetlands, and wetland protection began in earnest. The federal government has two major statutes to protect wetlands: the Clean Water Act and the Coastal Zone Management Act. States actually implement the Coastal Zone Management Act by developing their own statutes and establishing a coastal commission to protect those wetlands, so the federal government is only indirectly involved in coastal wetlands unless some other statute is involved. A state may also issue permits under the Clean Water Act if they become a “delegated state.” State laws tend to be more stringent than the federal ones, however. States have much more to lose when an acre of wetland is filled than the federal government does.

Waters of the United States

Until the Clean Water Act was passed in 1972, the federal government did not assert jurisdiction over wetlands. The underlying authority for regulating waters of the United States is the Commerce Clause of the Constitution. When Congress passed the Clean Water Act, it demonstrated that it wanted the broadest possible protection for surface water.

The statute speaks in terms of regulating navigable waters defined as waters of the United States, including interstate rivers and lakes, their tributaries (not normally considered navigable), and intrastate water. Under the Clean Water Act, the U.S. Army Corps of Engineers (COE) is responsible for issuing permits for dredge and fill operations in waters of the United States. At first, the COE used the traditional definition of navigability and did not regulate any waters that were not actually navigable.

In 1975, the COE was sued by the Natural Resources Defense Council for failure to protect covered waters. In Natural Resources Defense Council v. Callaway, the District Court of the District of Columbia agreed with the plaintiff. It ordered the Corps to amend its regulations to reflect Congressional intent. Congress, it held, meant to include national waters to the maximum extent necessary and did not limit the definition to traditional concepts of navigability. The revised definition of navigable waters included wetlands, along with open waters that cannot actually be navigated. To qualify as a water of the United States, the wetland had to be “inundated or saturated by surface or ground water at a frequency and duration sufficient to support vegetation adapted for life in saturated soil conditions.”

Adjacent wetlands, those next to an open water body, were first recognized as waters of the United States. The connection was easy to see, because the interaction between open waters and adjacent wetlands is obvious. However, the Corps authority has been extended to isolated wetlands if migratory birds use them, because they affect interstate commerce. It also covers artificial or manmade wetlands.

In 1985, the Supreme Court considered the validity of the COE’s definition in United States v. Riverside Bayview Homes, Inc. The Sixth Circuit Court of Appeals had found that the source of the wetlands in question was groundwater, as opposed to adjacent open water. It decided the COE could not regulate in such cases.

The Supreme Court disagreed with the appellate court. Looking at the history of the Clean Water Act and its revision in 1977, the Supreme Court found the COE’s definition was supported by Congressional intent. After the Riverside Bayview Homes decision, it was clear the definition would stand unless Congress amended the statute. In fact, Congress knew about the COE’s definition when it debated the reauthorization of the Clean Water Act in 1977, and it rejected attempts to narrow the definition.

Deciding Wetland Boundaries

One major problem with wetland regulation is called delineation. It is a process that precedes all permit requirements, because it determines whether a wetland exists, and if it does, where the boundaries are.

The Corps of Engineers, the Environmental Protection Agency (EPA), the Soil Conservation Service, and the Fish and Wildlife Service have all been responsible for wetlands delineation. Unfortunately, they have approached delineation from different perspectives, and the results have been confusing. Even within a single organization such as the COE, one office may be inclined to find wetlands, while another may not.

To make delineations more uniform, the four government entities developed a guide called the Federal Manual for Identifying and Delineating Jurisdictional Wetlands in 1989. The three criteria considered in the identification of a wetland are hydrology, vegetation, and soil. The COE makes most of the wetlands determinations for the federal government.

To make delineations more uniform, the four government entities developed a guide called the Federal Manual for Identifying and Delineating Jurisdictional Wetlands in 1989. The three criteria considered in the identification of a wetland are hydrology, vegetation, and soil. The COE makes most of the wetlands determinations for the federal government.

States may delineate their own delineations of wetlands. Since state regulation is more pervasive than federal, a person who wishes to know if property is a wetland must check with both the COE and the state involved.

Permitting

Section 404 permits may be general or individual. General permits cover many persons and go through the normal notice and comment review before they become effective. A general permit allows a particular activity to be done without requiring an individual to apply for his own permit. For example, up to one acre may be filled for a home.

Individual permit applications must be filed for any proposed activity in a wetland that will involve dredging and filling. The term filling is extremely broad. It includes putting in pilings to support a building, moving soil by means of a machine if the soil remains in the wetland, as well as bringing in dirt to build up the property.

The COE must involve the EPA in its permit process. As the ultimate guardian of waters of the U.S., the EPA has authority to veto a permit that the COE would otherwise grant. It has done so on several occasions, such as when the Two Forks Dam project in Colorado was vetoed and when the EPA barred the use of property in New England for a shopping mall. If the EPA and the COE cannot agree on the outcome, the facts go to the Council on Environmental Quality to see if the issue can be resolved. However, the EPA retains final say on the conclusion.

Enforcement may be done by either the EPA or the COE for unauthorized filling without a permit. The two agencies can bring administrative actions or file criminal or civil lawsuits through the Department of Justice. The agencies have developed a memorandum of understanding that discusses the roles each of them will play in enforcing and carrying out the law. The COE conducts the initial wetland delineation and usually investigates suspected violations. It is the primary enforcer of dredge and fill violations but can request the EPA’s assistance or ask the EPA to take the lead. If the activity involves disposal of waste, the EPA is the primary regulator, even if it results in filling the wetland.

Regulation of wetlands is controversial, primarily because of the impact it has on landowners. A person may buy property hoping to develop it and then fail to get a permit for the development. If the denial of a Section 404 permit eliminates all economically viable use of the property, a court may decide the government has taken private property for public use. In those cases, the Fifth Amendment to the United States Constitution requires the government to pay just compensation for the property. See also National Pollutant Discharge Elimination System; taking.
Based on “Environment and the Law. A Dictionary”.

Finding the law: Wetland in the U.S. Code

A collection of general and permanent laws relating to wetland, passed by the United States Congress, are organized by subject matter arrangements in the United States Code (U.S.C.; this label examines wetland topics), to make them easy to use (usually, organized by legal areas into Titles, Chapters and Sections). The platform provides introductory material to the U.S. Code, and cross references to case law. View the U.S. Code’s table of contents here.