Wetlands and the Law

The federal government is responsible for protecting the nation's wetlands. That authority comes from two laws. The first is the River and Harbors Act passed in 1899. That law made permission from the U.S. Army Corps of Engineers necessary for any construction involving dredging, filling or obstruction of navigable waters. It did little to protect wetlands, other than those that are navigable.

Eventually, because of increasing national concern for preservation of the nation's natural resources, the Corps rewrote permit regulations in 1968. In the revision, evaluation of all relevant factors - including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, aesthetics and the interest of the general public - must be considered before issuing a construction permit.

Those permit regulations were part of the second law - the Federal Water Pollution Control Act, more commonly known as the Clean Water Act - that gave the federal government authority over wetlands. Amendments to that anti-pollution piece of legislation in 1972 gave additional strength to the Corps for the protection of wetlands and extended the Corps' regulatory jurisdiction beyond navigable waters to cover all waters of the United States, including wetlands. This authority is listed in Section 404 of the Clean Water Act, and certain activities in wetlands are allowed under what is commonly known as "404 Permit." The Environmental Protection Agency was made a partner in the new program, giving them veto authority and responsibility for establishing guidelines for protection of aquatic environments.

To receive protection, an area first must qualify as a wetland, according to the Corps' definition, which sets criteria relating to soil, vegetation and flooding. If an area meets the guidelines, only certain activities are permitted. A permit is required for all operations involving the discharge of dredged or fill materials into a wetland, and all permits require a review of the proposed project's environmental impact. Furthermore, under the Corps' policy, no alteration of wetlands may take place until the proposed project can be demonstrated to be in the public interest. And "unless the public interest requires otherwise," the Corps has confirmed its resolution to protect wetlands from destruction.

"Swampbuster" is a provision for wetland protection made possible with congressional passage of the 1985 Food Security Act, better known as the 1985 Farm Bill. This provision withheld farm subsidy payments from landowners who convert wetlands. Conversion is considered to be the removal of natural vegetation from a wetland.

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