Laws That Protect Wetlands

The use of wetlands is regulated by federal, state, and local governments. There are four general types of laws, including those specifically directed at:

• wetlands [administered by the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA)];
• water quality (administered by EPA and the states);
• the protection of our nation's coasts [administered by EPA, the National Oceanic and Atmospheric Administration (NOAA), and the states]; and
• local land uses (administered by state or local governments).

Each area of the law has its own permitting process, government administrators, and opportunity for public input. Therefore, it is important to have a general knowledge of each of these four areas of the law when dealing with any specific project or development.

Federal Laws and Regulations

The Clean Water Act (33 U.S.C. Section 1251 et seq.)

In 1972, Congress passed the Water Pollution Prevention and Control Act— commonly known as the Clean Water Act— to protect the quality of the nation's surface and ground waters, including oceans, lakes, rivers, streams, aquifers, coastal areas, and wetlands. The Clean Water Act sets out broad rules for protecting the waters of the United States and gives the Corps and EPA the power to write more specific rules governing activity in or on water and wetlands. These more specific rules are known as 'regulations' and can be found in the Code of Federal Regulations. Sections 404 and 401 are two parts of the Clean Water Act that apply directly to wetlands protection. While Section 404 regulates activities that affect the filling of wetlands, Section 401 is concerned with maintaining good water quality in wetlands. More information on the Clean Water Act can be obtained at your local law library or at http://www4.law.cornell.edu/uscode/33/ch26.html.

Section 404 of the Clean Water Act

Section 404 of the Clean Water Act (often referred to as 'Section 404' or simply '404') forbids the unpermitted "discharge of dredge or fill material" into waters of the United States. Section 404 does not regulate every activity in wetlands, but requires anyone seeking to 'fill' a wetland to first obtain a permit from the Corps. For example, if a person wishes to construct a building or other development and wetlands need to be filled to complete the project, Section 404 requires that the person first obtain a permit from the Corps.

There are four main federal agencies involved in the Section 404 permitting process and the primary responsibilities of each are described in the Wetlands Manual.