There is no comprehensive federal wetlands policy today. Over the years many different laws have been passed, some to protect wetlands, and others that were designed for other purposes but ended up being used to protect wetlands. This failure to create a comprehensive set of regulations has forced the debate over what to do about wetlands out of the hands of the legislative branch, where such matters should be decided, and into the executive branch and the federal bureaucracy. Wetlands regulation is the hands of many different federal agencies, each with its own set of priorities. Rarely is the first priority to protect wetlands.

Exsisting regulations today do not offer the full coverage that wetlands need. And there are many ways that wetlands can still be destroyed, either through exemptions to the laws, or through getting a permit to use wetland mitigation to make up for the wetlands that are being destroyed. However, wetland mitigation is still an inexact science at best, as this project has tried to show. In addition, the permit process itself is somewhat flawed. The language of the law is that in the permit process a developer has to show that they are attempting to minimize any damage to wetlands and that they examined other sites to insure that there were no other site possiblities. These two provisions have been very poorly enforced. A decision is supposed to made to see if the benefits of the project outweigh the benefits to society of the wetland, and if it does only then consider mitigation. That is not what is happening today. The Congress needs to act to create one set of laws that are designed to protect wetlands and at the same time still allow some development, as long the economic and social benefits of wetlands are somehow replicated.

The Clean Water Act

Section 404

Section 404 of the Clean Water Act is the main body of federal regulations concerning wetlands. It is administered by both the Environmental Protecion Agency and the U.S. Army Corps of Engineers. Specifically, section 404 regulates the discharge of dredged or fill materials into waters of the United States, which include wetlands. Persons are still allowed to discharge said materials into the waters of the US as long as they have a permit from the Corps of Engineers, persuant to regulations by the EPA. The penealties for failing to aquire a permit can include fines and/or jail time. The EPA administrator may also veto the issuance of a permit at any time if he/she determines that the discharge will cause unacceptable adverse affects on recreational areas, water supplies or wildlife and fish.

Permits

In order to discharge dredged or fill materials into waters of the United States, you must get a permit from the Army Corps of Engineers. There are two kinds of permits, general and individual. General permits allow the Army Corps of Engineers to exempt certain activities nationwide that they consider will cause minimal adverse affects to the environment. They are currently somewhere around 40 different nationwide permits. More than half do not require prior notification to the Army Corps of Engineers before work can begin.

A listing of all the nationwide permits is avalible on the Wetlands regulation site.

Individual permits are required for projects that are going to have a significant impact on wetlands, and do not fall under any of the general nationwide permits. Individual permits are reviewed according to a number of criteria. Before anything is reviewed, an environmental impact statement is required to be completed. Then, the Corps examines the project to insure that there is no alternative to the project that would have less of an impact on wetlands. Projects that do not require water are reviewed with more detail in order to insure that there are no other alternatives. The Corps then also reviews all applicable federal laws (such as the Endangered Species Act) to insure that the project is in compliance. Once these steps have been passed, the project must insure that all efforts are being taken to minimize the impact on the affected wetlands. Finally the Corps decides what sort of mitigation requirements will be enacted. The key here is that there is NO NET LOSS. Therefore the Corps will usually require at least as much destroyed as it mitigated for, and often more.

Exemptions

There are some activities that are exempt from from all permit requirements. They are listed in the following EPA document:
EPA 232.03

Section 401

Section 401 allows individual state governments to influence the section 404 permit process. Specifically, section 401 allows states to grant, deny or condition all section 404 permits. Obviously, this law is only as powerful as the section 404 law is, but it does allow another group to get in on the permit process.

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