An opening for meaningful reform?

HEADNOTE

Forthcoming rules governing federal oversight of wetlands could produce more sensible environmental policy.

RECENT LEGAL DEVELOPMENTS HAVE called into question the scope of the fedral government's jurisdiction

over the nation's wetlands. Section 404(a) of the Clean Water Act (CWA) authorizes the U.S. Army Corps of Engineers to issue permits for the discharge of dredged or fill material into "waters of the United States." Section 404(b) requires the U.S. Environmental Protection Agency, "in conjunction with the Corps," to promulgate environmental guidelines that control the Corps' permitting decisions.

Section 404 originally assigned the Corps the authority to issue permits for the discharge of dredge or fill material into "navigable waters." The term stems from the Rivers and Harbors Act of 1899, the forerunner to the CWA. In the CWA, the term "navigable waters" was retained but broadly described as "waters of the United States" as the Act was intended to address environmental problems as opposed to simply protecting navigable waters.