Wetlands Regulation in USA

Stress: Regulation of Wetlands in the United States

Regulation of Wetlands in the United States

Defining Wetlands and their Value

A wetland refers to a place where water covers the soil. A wetland is a saturated land that comprises of swamps or marshes. Lewis defines a wetland as, "an ecosystem that depends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate" (p.3). He further ascertains that the minimum necessary qualities of a wetland are sustained inundation, saturation or recurrent at or near the surface and the existence of chemical, biological and physical facets that reflect recurrent, saturation and sustained inundation (Lewis 3). The major diagnostic wetland features include hydrophytic vegetation and hydric soils. These characteristics present biotic, anthropogenic or physicochemical features apart from where the growth of these aspects has been blocked (Lewis 3). The wetlands are located near rivers, oceans, lakes or swamps, and they form part of the basis of a country's water resources. In this regard, wetlands are significant to communities living downstream. They are also crucial to well-being of waterways, and they trap floodwaters, feed downstream waters, remove pollution, offer wildlife and fish some habitat besides recharging supplies from groundwater.

Apparently, wetlands are compellers of a country's economy given that they play a major role in hunting, recreation, fishing and agriculture. The wetlands comprise of marshes, bogs and swamps and they differ considerably because of disparities in climate, soils, water chemistry, hydrology, topography among other factors (Lewis 3). Wetlands are located in flood plains and alongside waterways. Nevertheless, some of these wetlands hold no obvious link to surface waters like ocean, lakes and rivers, but they hold crucial groundwater links.

Wetlands are important resources as they regulate ecosystem services; provide livelihood and cultural services. The rich biodiversity and visual beauty of wetlands make people to value these places for economic and social gains (Lewis 3). This is because wetlands operate as reservoirs for the most precious commodity in humanity, water, and absorb excess water that could result in destructive floods. Wetlands purify the waters that go through them and absorb some of the carbon dioxide that human beings pump into the air.

All ecosystems that comprises of green plants emit carbon dioxide. Plants emit carbon dioxide gas, which sinks into wetlands. However, human demands on wetlands have exceeded these significant services. This is because scores of wetlands in the world are exploited in a manner that is not sustainable. Peat has been removed from scores of the great blogs around the world where extensive wetland areas have been drained for forestry (Lewis 3). Wetlands offer a natural system for control of flood besides providing a substantial income source to human beings given that wetlands are a good source of food and offer recreation prospects. Wetlands are quite significant, but they are misused a trend that triggers wetland regulations.

The History of Wetland Regulation in the U.S.

Until recently, policies of the U.S. federal government were aimed at encouraging and subsidizing the conversion of wetlands to drained or filled lands that could be utilized for agricultural purposes or other purposes that are not compatible with the subsistence of wetlands. These federal policies besides other extensive private efforts of a similar temperament lowered the aggregate acreage of wetlands in the contiguous U.S. By almost one hundred and seventeen million acres or half of the total acreage by mid 1980s (Hopper 208). While this conversion of wetlands offered expansive amounts of novel cropland and boosted the agricultural ability of the United States, besides eliminating some of the socioeconomic troubles linked to wetlands, lowered scores of the useful characteristics of wetlands.

The valuable qualities of wetlands include maintenance of water quality and water flow support. A more and more broad apprehension for these losses formed political support for detailed protection of wetlands. Federal wetlands regulation started to take effect on a broad scale in the 1970s and it now comprises of virtually all wetlands. Notably, wetlands are the only ecosystem exclusively controlled across all private and public lands in the United States. The 1972 amendments to the Federal Water Pollution Control Act gave the United States Army Corps of Engineers (USACE) and the EPA (environmental Protection agency) power to regulate waters in the United States.

The 1972 Act coverage extended to wetlands, but was intently interpreted at first and expanded to only fifteen percent of the total acreage of wetlands in the United States. Between 1972 and 1977, judicial decisions considerably widened the coverage to the law and formed a need for a regulatory definition of wetlands and federal conventions through which a definition of wetland could be used. The USACE made final regulatory definition in 1977. However, USACE delegated to its district officers the formation of processes for delineating and indentifying wetlands. The 1977 Federal Water Pollution Control Act Section 404 amendments (Clean Water Act) ascertained the federal commitment to wetlands regulation and wide national application of the 1977 Act to wetlands was maintained judicially in 1985. In 1985, the Food Security Act introduced an isolated regulation wetland definition for application to agricultural lands.

After foreseeing and realizing the call for increased national uniformity in the classification and demarcation of wetlands, the USACE issued a national demarcation manual in 1987 otherwise referred to as 1987 Corps manual. USACE worked together with the United States Fish and Wildlife Service, U.S. Department of Agriculture (USDA), EPA in the creation of a revised manual, which they released in 1989. They named the manual as the 1989 Interagency manual. However, this manual received strong criticism from groups and individuals who viewed it as being extremely predisposed towards the control of lands that not appropriately categorized as wetlands.

A second trial in the formation of a revised manual got underway during the Bush Administration in 1991 (1991 proposed revisions). Similarly, the 1991 proposed revisions received much criticism because of excluding scores of wetlands from the control coverage. Implementation of the 1991 revision never took place. As a result, EPA and USACE have constantly used the 1987 Corps manual (Connolly, Johnson and Stephen 18) . However, the NRCS ( National Resources Conversation Services) formerly known as the Soil Conversation Service had put into practice the 1985 Food Security Act via the creation of an isolated demarcation manual for application on agricultural lands.

The formation and removal of the 1989 interagency manual and proposed revisions of 1991 as well as the espousal of an isolated manual selected specially for agricultural land lead to uncertainty and confusion regarding technical and scientific validity of federal regulatory process in the delineation and identification of wetlands. In 1993, the congress requested that EPA direct the National Research Council to establish a committee to evaluate the validity and adequacy of wetland classifications. The need to understand the basis for application of definitions via delineation manuals, offers understanding of the functions and structure of wetlands, and regional disparities among wetlands.

The regulation description of wetlands and the processes through which wetlands are delineated and identified are of major practical concern given the nationwide wetlands regulations. If flawed procedures and flawed definitions lead to the description of wetlands where wetlands never subsists, landowners can unjustifiably lose their flexibility to build up land for agricultural purposes. Procedural and definitional flaws that cause the exclusion of true wetlands cannot mirror the objective of judicial decisions and legislation that forms the federal regulatory powers over wetlands. The function of NRC committee is to assess the technical and scientific foundation delineation and identification of wetlands, and not to assess social or economic concerns linked to wetlands.

Through comparing the 1989 interagency manual and the proposed revisions of 1991 with 1987 Corps manual, the NRC committee confirmed that the 1989 interagency manual would offer the most extensive interpretation of boundaries of wetlands. The 1987 Corps manual would offer demarcations akin to those proposed by the interagency manual of 1991. Demarcation by application of the proposed revisions of 1991 would be more restrictive than the provisions of both the 1989 and 1987 manuals. This is because the 1991 proposed revisions would instigate automatic exclusion of many true wetlands through unfeasible documentation requirements.

Wetlands Regulation under Clean Water Act

Several national environmental policies safeguard the wetlands of the United States through regulating activities such as filling and dredging of wetlands. Among these, environmental polices are the 1899 River and Harbors Act, numerous Farm Bills that tie subsidies from agriculture to wetlands conservation and North America Wetlands Conservation Act. These policies depend on non-regulatory and regulatory tools such as subsidies credits to safeguard wetlands. The most important policy that addresses wetlands is the 1972 Clean Water Act of 1972 and its amendments (Leonard 31). The Clean Water Act controls the country's surface waters through introducing ambitious water quality objectives besides creating a permitting system to regulate discharges into the United States waters.

Clean Water Act section 404 gives the Environment Protection Agency power to control the discharge of dredged fill material into navigable waters. Through legislative, judicial and administrative decisions, "navigable waters" include wetlands. For regulatory purpose of the Clean Water Act, the term wetlands refers to those areas that are saturated or inundated through ground or surface water at a duration and frequency sufficient to foster and that which under normal circumstances do support a prevalence of vegetation adapted for life in saturated soil status (Spray and McGlothin 102).

According to the U.S. Environmental Protection Agency of 2001, wetlands include marshes, swamps and other akin areas. Most of wetlands regulation politics revolves around fine-tuning the common regulatory description through delineation of wetlands. The permitting program established to execute Section 404 is governed through the United States Army Corps of Engineers. However, the EPA upholds oversight via comment and review and the body holds to authority to veto specific permits. As a result, plans to fill and drain a swamp, prairie pothole or bog on a person's land require a Section 404 permit used by the Corps.

The CWA (Clean Water Act) is the major United States Federal law that regulates water pollution (Hopper 208). The act was endorsed in 1972 and it established three major objectives of preventing emission of increased amount contaminated substances in the United States waters (Hopper 208). The Act also ensure eradication of supplementary water contamination by 1985, and guarantees that the United States surface waters attain the required standards for recreation and human sports by 1983. The 1972 Act does not handle contamination of groundwater. The CWA covers all waters holding a navigable waters and significant nexus. The Clean Water Act introduces the fundamental structure for controlling pollutants discharges into the United States waters and controlling surface waters quality standards.

The Clean Water Act foundation received endorsements in 1948 and was referred to as the Federal Water Pollution Control Act, but this Act was considerably reorganized and developed in 1972. The 1972 amendments led to the formation of the Clean Water Act. Under CWA, EPA has executed control programs for pollution, which include setting industrial wastewater standards, and water quality principles surface waters pollutants (Hopper 209). The Clean Water Act made it illicit to release any contaminant into navigable waters especially in absence of a permit. Environmental Protection Agency's NPDES (National Pollutant Discharge Elimination System) allow program regulation discharges. The Environmental Protection Agency functions with its state, tribal and federal regulatory blueprints to ensure compliance with CWA regulations and law to safeguard the environment and human health (Hopper 208). EPA uses several perspectives to ensure compliance of CWA and protection of human health and the environment. Among these perspectives is Oil Spill Prevention, National Pollutant Discharge Elimination System, Industrial Storm Water, Wastewater Trading Program, and Wetlands Section 404 to mention but a few.

With respect to wetland, the underlying principle for Clean Water Act regulation is, as the Corps has acknowledged, that wetlands can act upon significant functions linked to the integrity of other waters. These functions include flood control, runoff storage and pollutant trapping (Connolly, Johnson and Stephen 17). Wetlands posses their indispensable convergence and thus come within the constitutional phrase, "navigable waters" if the wetlands either alone or in combination with similarly located lands in the regions considerably affect the biological, physical and chemical integrity of other covered waters viewed as navigable (Hopper 208). When in contrast, wetlands impacts on water quality are insubstantial or speculative and they fall outside the zone encompassed by the legislative term, "navigable waters." As regards wetlands adjacent to conventional navigable waters, the agencies regulations rests upon a logical supposition of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Clean water Act through showing adjacency alone. According to Leonard, wetlands adjacent to non-wetland interstate waters are similarly jurisdictional without the need to demonstrate a momentous nexus (p.31).

For wetlands adjacent to tributaries that hold a valuable nexus to a conventional navigable water or interstate water, the EPA and the Corps must establish that the wetland alone or in combination with other adjacent wetlands in the cut-off point has a valuable nexus to a conventional navigable water or intestate water. The Clean Water Act is tied to wetland regulation through Section 404. The major component of wetland protection contained in the Clean Water Act is the discharge-and-fill regulations in section 404. Under CWA section 404, the EPA can regulate any discharge into the United States waters. Given the overlapping jurisdiction of Section 404, and section 10 of the Rivers and Harbors Act of 1899, EPA delegated execution of section 404 to USACW while upholding the oversight responsibility. The ( Federal Water Pollution Control Act) FWPCA represented a crucial departure from previous water policy.

The term wetland is not applicable in the legislation. However, the use of the FWPCA to safeguard wetlands is derived from judicial decisions that interpret and expand the scope of USACE jurisdiction by largely extending the definition of the United States waters (Hopper 208). The national government tools the lead in introducing and controlling national water quality besides issuing and enforcing permits. States assumed a powerful role in water quality certification. Under Section 401 of the Clean Water Act, the states can prevent a proposed project through refusing to grant a water quality certificate. States can expand their responsibility in the regulation of water quality and water use through assuming power for other sections of the CWA from the Corps and EPA (Hopper 209). This includes the section 404 discharge and fill program. The federal agencies retain a powerful oversight role in assessing state execution of water quality protection.

Section 404 has protected wetlands in many different areas. Assessments of the performance of diverse Corps districts differed considerably. Some districts singled out by States for being outstanding in their program of implementation while others received constant criticism due to lack of action. The unclear regulatory policies promote ineffective implementation of policies at district level. Monitoring and enforcement are also crucial given that no regulatory program can be productive in absence of sufficient monitoring of compliance with enforcement and regulations of sanctions against violators.

Three main facets of Corps policy are criticized with respect to the extent of protection offered to wetlands under Section 404 program; interpretation and the objective of section 404, interpretation of interstate commerce and jurisdiction over incidental discharges linked to excavation and clearing. The degree to which Section 404 is applicable in protecting biological systems is controversial due to Corps explanation of water quality. The main goal of the Clean Water Act is to preserve the biological, physical and chemical reliability of the Nation's waters. The elucidation of biological veracity is a crucial concern. Broad explanation of the idea of biological veracity and the intent of CWA would entail protection of wetland habitat values. Federal resource agencies and environment agencies trust that the mandate of CWA obliges the Corps to protect the veracity of wetlands, including their habitat values as opposed to protecting the water quality only.

The Corps, after a narrower interpretation of CWA views its principal role in performing the laws as a protecting water quality. However, CWA views preserving other wetland values as a secondary concern. Corps does consider wildlife and fish habitat values under its common public interest review that forms part of the overall balancing procedure utilized to determine whether to give a permit or not. Habitat values are not afforded any specific status over other aspects that are also viewed in the public interest review apart from the degree that Corps regulations state that the unnecessary alteration or damaging of crucial wetlands should be not permitted.

The Process of the 404 Permit Issuance

The permitting practice entails submission of information concerning environmental effects on wetlands of the proposed activities by the applicant. The applicant must demonstrate that no practicable alternatives that prevent such effects are present (Spray and McGlothin 102). While Section 404 applies to public and private property, most of debates about Section 404 are as a result of its application to private property given that denials of these permits blocks development aimed at augmenting the economic value of a given private property.

To grant a discharge permit under section 404, the discharge must attain three criteria. To begin with, the discharge cannot formulate any substantially adverse environmental effects. Secondly, there must be no reasonable upland choice to the wetland site present in the proposed non-water dependent action and lastly, the proposed 404 action must be water dependent (Gaddie and Regens 42). Under the Corps of engineers regulations, a permit will be given unless the district engineer conclude that granting a permit would be conflicting to the interests of the public.

EPA regulations are more rigorous and they state that a permit will not be granted unless it can be demonstrated that the proposed discharge would not hold a deplorable adverse effect. The process of permitting under section 404 is chronological and allows for numerous comments and admission by interest parties to the verdict on any permit (Gaddie and Regens 42). The EPA and the Corps must inform and provide prospects to all interested parties who include community interest groups, proximate landowners, state and federal agencies to comment. Relevant agencies entail not only EPA and USACE, but also the U.S. Fish and Wildlife Service, National Marine Fisheries Service, and occasionally involvement of USCG and TVA. The agencies review the proposed site for discharge and development, comment and attend reapplications meetings between the Corps and applicant, and give their comments on the applications of permits.

The USACE considers the views of all the agencies involved and other vested interests in rendering the verdict in issuance of discharge permit. The Corps then issues a public notice after receiving permit application and then carries out a public comment period that lasts for 15 to 30 days (Gaddie and Regens 42). Public hearings take place on the permit thereby allowing a form of procedural due process (Hopper 209). The USACE takes 90 days from the permit application day to reach a verdict. Only the Corps can issue a permit while EPA holds the power to handle enforcement actions, but has delegated permitting powers to the USACE except in cases of constant violators. The Corps engage in inspections of activity site and activities, suspension of permit if there is non-compliance, interagency surveillance and coordination, but it does not engage in extensive supervision of projects after issuance of permits (Gaddie and Regens 42).

Issues in Wetlands Regulations

The application of section 404 of the CWA to wetlands regulation has been controversial. Builders, developers, environmental protection activists, property owners agreed on the need and practicability to protect marshes, swamps and bogs. However, the procedure of classifying and identifying wetlands based on characteristics credited to wetlands-delineation is the major contentious problem in wetland regulation. Under the existing regulatory structure that controls wetlands, there has been disagreement between agencies concerning the identification of wetlands. The Fish and Wildlife Service has been the most liberal in the identification of a land as "wet" while the Corps and state agencies have employed less generous techniques to delineate wetlands (Hopper 208). Moreover, there is a substantial controversy concerning the effects of section 404 on lands in the jurisdictional areas that do not offer the wetland advantages.

The CWA's Section 404 as put into practice by EPA and the Corps is subject to criticisms. Environmentalists argue that the criteria of offering permit are too lenient because they allow the damaging of too many wetlands. The environmentalists also assert that the existing regulations are inadequately enforced and that the permits are usually approved without enough regard to environmental destruction to wetlands. On the contrary, activists of private property affirm that the regulations are far too strict, that enforcement endeavors are without cause heavy-handed that the laws change often thereby creating confusion. Moreover, CWA section 404 laws lower the property value of private land as farming and development of wetlands is not allowed (Spray and McGlothin 102).

The section 404 program is highly controversial for divergent reasons. The most laconic statement of the criticisms of the present regulation under section 404 is that the program is unfair, unpredictable and slow. Particularly, opponents point out that the permit program does not consent to executive appeals of USACE verdicts. Property developers and owners complain that wetlands delineation has been poorly carried out and repeatedly slow and inaccurate. Decisions to disallow or allow activities often seem arbitrary, and the lack of consistent and clear delineation creates this perception (Gaddie and Regens 37). Facility preservation advocates declare that the present implementation does so little to safeguard wetlands from development. Some wetlands protection observers view section 404 of Clean Water Act as an awkward compromise amid environmental and development interests. Gaddie and Regens assert that the statute was left deliberately indistinguishable due to splits within the Congress that made the constructing of a greater part to support a sturdy pro-environmental statute impossible (p.37). This trend gave the Corps of Engineers latitude to safeguard ecologically delicate wetlands, or permitted engineers to allow the damaging of wetlands when no readily identifiable options were available.

Expansion of the effect and scope of section 404 programs in the course of 1970s was muted by EPA and USACE officials. Federal regulators did not support a development hostile response given that section 404 is almost certainly more invasive than any other form of federal regulation concerning the development and use of private property. In the 1990s, legislation with an example of Property Owner's Bill of Rights supported by, Billy Tauzin, a Louisiana congressman in 1995 who took aim at the invasive temperament of wetlands directive (Gaddie and Regens 38) .

The Inclusion of Commerce Clause into Cases Regarding Wetland Regulation

The strongest federal authorities over flows of rivers are derived from the Commerce Clause found in Article 1, Section 8 of the United States Constitution and the 1972 Clean Water Act. Under the Commerce Clause, the U.S. federal government has the power to control commerce among the states and with other nations. Given that waters may be utilized for commercial navigation, it offers Congress some power over management of water. This power initially received narrow interpretation to cover only actions that causes an obstruction to navigable waters. Overtime, nevertheless, federal courts expanded the description of navigable and the different activities to which the commerce clause applied. The courts determined that rivers did not necessarily have to be navigable for the Congress to declare its commerce powers. By the time Congress endorsed the 1972 Clean Water Act, the courts had permitted the federal government to declare jurisdiction over all the waters of the United States including streams, lakes, estuaries, rivers and wetlands.

The federal Clean Water Act provides the clearest and the broadest authorization to the United States Congress to protect the health or rivers (Connolly, Johnson and Stephen 18). Coupled with authority awarded under the Commerce Clause, there is little doubt that the national government holds all the powers it requires to restore and protect flow of rivers. The expressed objective of the Clean Water Act is to maintain and restore the physical, biological and chemical integrity of the waters of the United States. In the course of three decades of executing the CWA, the Congress and federal agencies governing it have centered mainly on protecting chemical integrity by setting water quality standards, contamination control needs and the most appropriate management practices (Postel and Richter 96).

According to Kamieniecki and Kraft, the United States Supreme Court has waned and waxed on significant constitutional questions, with a wide understanding of the powers of the Congress under the commerce Clause that serves as the major rationale behind the federal government acceptance of scores of environment laws (p.265). The court has started to restrain the reach of the Congress through invalidating some federal laws as being not consistent with the provisions of the Commerce Clause. The most significant non-environmental decisions in this view include the 1995 U.S. v, Lopez case which triggered renewed apprehension regarding the restraints of acceptable wetland directive under the Commerce Clause given that not all wet resources lie or are contiguous to waterways of navigable waters. This case alongside others such as the 2000 Morrison case instigated a change in the environmental sphere and questions whether certain wetlands lie within the jurisdiction of Corps of Engineers under CWA section 404 (Kamieniecki and Kraft 265).

The Court recognized wide jurisdiction for the Corps of Engineers in Riverside Bayview in 1985, but narrowed the jurisdiction in Solid Waste Agency Cook County in 2001 and excluded intrastate waters. The court has never addressed the question of the Clean Water Act constitutionality for intrastate waters. However, the Court has focused on the concern whether or not the regulations of the Corps of engineers are consistent with the statute endorsed by the Congress. The question regarding constitutionality of CWA intrastate waters in Rapanos where Justice Scalia's view directly challenged any dogmatic interpretation of the laws that does not hold any direct link to navigability. As a result, a clear Commerce Clause source of federal jurisdictional powers to control wetlands and other United States waters (Kamieniecki and Kraft's 265). The Commerce Clause puts on task the federal government's powers to control wetlands (Kamieniecki and Kraft's 265). The Congress utilizes the Commerce Clause, which gives the national government power over activities that affect interstate commerce. However, the Commerce Clause does not give the federal government power to control wetlands.

The federal government's policy towards the use and directive of wetlands has changed considerably since the commencement of the 19th Century. Only since 1870s has the federal government exercised substantial influence in the utilization and care of the country's waters (Joshua 263). The extension of the federal waters authority, which ended in the 1972 FWPCA and successive amendments, is permissible because of the recent interpretation of the Commerce clause by the courts (Joshua 264). The courts ruled that the Congress can control the use of a waterways as a disposal under the Commerce Clause, when the water has the capacity of supporting any form of commerce.

Prior to 1970s, federal wetlands regulation was bound by judicial understanding of the Commerce Clause. Under the Commerce Clause, the federal courts allowed the Corps to control navigable waters condition. To the degree that a wetland was considered " navigable water," the intervention by the federal government was permissible. Nevertheless, the description of navigable waters and the expansion of jurisdiction under the Commerce Clause was viewed literary, and the federal activity was restrained to upholding the situation of commercial waterways with the intention of upholding national economic well-being. The judiciary broadened the understanding of navigable waters in the course of the twentieth Century.

In 1972, the courts ruled that the federal government could declare jurisdiction over waterways previously used for commercial transportation notwithstanding the current usage (Joshua 263). This is evidenced in Economy Power and Light vs. United States, 256 U.S. case (Joshua 264). A 1935 rule maintained a wider test of navigability that extended the jurisdiction of the federal government and introduced a definable decisive factor for navigable waters. However, federal jurisdiction was restrained to water above the mean high-water line as proved in the Borax Consolidate vs. Los Angeles case in 193 (USA Congress 175). However, notwithstanding the expansion of the scope of the power of the federal government, most wetlands continued to be outstand the federal regulatory realm.

The Corps understanding of the scope of the interstate commerce issues that arise when district engineers consider whether to utilize discretionary power and to require individual permit for a separated wetlands faces much criticism (USA Congress 175) .The interstate commerce is considered to be too restrictive. According to USA Congress, Corps leadership is pressing districts to apply section 404 only where interstate commerce concerns, narrowly described, are engaged (p.175). In reaction, some districts are not putting into consideration the effects on migratory water-flows from filing of inland wetlands and are only sparsely controlling such activity. Other factors of interstate commerce that are not put into consideration although they could offer greater prospects for wetlands protection under section 404 comprises of water withdrawal for interstate industry, oil extraction and land development for interstate purposes, visits by international and interstate and crop production.

Enforcement Procedure of the CWA on Wetlands Regulation

In the past, Corps has been reluctant to exert power over land-clearing and excavation practices that entail discharges into wetlands from drippings of bulldozers and dragline buckets. However, such jurisdiction has been permitted via court decisions. The Corps made its position clear on vegetation clearing in Regulatory Guidance Letter 82-1 (U.S. Congress 176). The policy provides that any removal of vegetation is not a discharge of dredged or fill material. The inclusion of vegetative matter into the United States water requires a section 404 permits if the principal purpose is replacing an aquatic area with dry land or altering the bottom elevation of the water body (U.S. Congress 176). Incidental soil movements linked to the removal and planting of vegetation is not viewed as a discharge. Nevertheless, if removal or planting of vegetation is accompanied by land leveling that changes the topographic facets of the United States waters via considerable soil movement, it is subjection to CWA section 404 (Connolly, Johnson and Stephen 18).

Besides the joint implementation of the section 404 program of Clean Water Act, U.S. Army Corps of Engineers and EPA share the authority of section 404 enforcement. The violations as stipulated by section 404 of CWA include lack of compliance with the conditions or terms of section 404 permit and discharge of fill material or dredged materials to the United States waters (USA Congress 175). In 1989, Corps and EPA signed a MOA on enforcement to guarantee productive and efficient execution of their shared power. Under the Memorandum of Agreement, the Corps, the federal agency that provides permits holds a lead on violations concerning their Corps-permit violations (USA Congress 175). With respect to prohibited discharges, the Corps and EPA identify the most suitable lead agency founded on the MOA decisive factor.

Environmental Protection Agency section 404 enforcement programs hold three major goals, which include:

Conserving the environment and protecting the human safety and health

Deterring infringements

Treating the controlled community equitably and fairly

Environmental Protection Agency program attains the mentioned goals via voluntary acquiescence and through the enforcement tools offered under CWA sections 309 and 404. In executive enforcement, under Section 309 (a), EPA has the authority to issue orders of administrative compliance that requires a violator to put on hold any in progress illicit discharge practice (USA Congress 175). Where suitable, EPA has the authority to make the violator remove the unlawful discharge and restore the land.

Under CWA section 309 (q), EPA has the power to evaluate administrative civil penalties amounting to 16, 000 dollars every day of violation. EPA can also evaluate civil penalties of up to 177, 500 dollars in one enforcement action (USA Congress 176). Concerning the court enforcement, Sections 309 (b), and 309 (d), and 404 (s) allows the Corps and EPA the power employ civil court enforcement actions that seek to restore besides other forms of injunctive relief and civil penalties. Under section 309 (c), EPA and the Corps have the power to bring forward criminal judicial enforcement practice for negligently or knowingly violating section 404.

The Corps and EPA puts into consideration divergent aspects when making a decision whether to begin an enforcement process and what type of practice to pursue once a decision is made to carryout enforcement action. These aspects entail the water body size, that is, wetlands acreage and the environmental value, the quantity of fill, the violators past experience with CWA section 404 and the compliance history of the violator. In most situations, the Corps and EPA choose to resolve CWA section 404 via administrative enforcement or voluntary compliance. Since the ratification of the CWA, the Corps and EPA have applied their powers on criminal enforcement sparingly in reaction to CWA section 404 violations. They reserve their authority on criminal enforcement for egregious and brazen infringements of section 404.

Drainage of wetlands by excavation can rarely be achieved without incidentally or directly discharging dredged or fill material into the wetland area. However, the Corps does not often control drainage that takes place in the course of wetlands conversion to agricultural or urban use. Given the nature of Corps organizations, a great deal of variability in the ways through which the 404 programs get implementations among the semiautonomous districts exists. Nevertheless, Corps has the power under section 404 to assess and enforce conditions of its permits. On the other hand, EPA hold considerable enforcement power to take action against unpermitted and therefore illegal discharges of dredged or fill material under sections 301, 308 and 309, the Corps is compelled to rely on EPA and the department of justice to obtain injunctions against illicit actions.

Two major forms of violations of the 404 program occur. They include discharge of dredged or fill material in absence of a permit and discharge in violations of status placed on permits. Corps confirmed that 3, 724 violations of sections 404 and 10/404 were confirmed in 1980 (U.S. Congress 178). Given that there are no requirements to show that a project requires permitting exemptions, the application of general permits may lead to increased percentage of violations from unpermitted activities. The degree of compliance differs from year to year and within each district. Enforcing wetlands regulations is difficult, and in some district Corps send teams to explore suspected violations given the threats made against district personnel relating to wetland cases. The most regular forms of noncompliance include:

Unpermitted activities, which include lose-fall projects such, trash dumping, minor erosion-control projects and formation of access roads and boat ramps.

Violations of conditions of permits, which entail failure to carryout sedimentation, control.

Violation of dimension and size restrains placed on structures and placement of fill material or dredged materials.

The U.S. Congress asserts that inland state faces considerable problems compared to coastal states with increased violations from dredging than from construction or fill projects (p.176). More violation also takes place with individual permits compared to corporate permits. Moreover, district differs in the amount of expenses and time they devote to monitoring of permitted actions and enforcing of permit conditions. Some districts carryout site investigations of all permitted developments once in the course of construction and following completion of these works. They also survey their jurisdictions regularly for unpermitted activities. Other districts are reactive in monitoring and enforcing the permit conditions, and when any violation is reported to the personnel's in the districts, they investigate it, but they do not seek for violations. '

Upon discovery of permit violation, Corps districts hold numerous options. A ceases -- and -- desists order cannot be issued. For projects established without going through the permitting process, negotiations with violators to accept modifications are common. When the project is viewed to be in compliance with environmental principals, and with minor effects, it is often provided with an after-the-fact permit. The violator can also face court charges, the project destroyed and fines imposed. Litigation is favored in few cases where permit holders egregiously violate their permit conditions. In less critical violations, the holders of permits need to stop the progress of their activities in dispute in order to offer mitigation measures.

Every effort is put in place to help resolve violations that do not call for actual prosecution. In different cases, subsequent investigations determines that suspected infringements are in deed licit activities, that is, some cases fall under general permit or do not require section 404 permit. For instance, in 1980-2273 such cases took place. Violators do not face prosecution if voluntary restoration is made, even though restoration is made under the prosecution threat.

Voluntary restoration may be formed in the context of after-the-fact permitting. For instance in a case that took place in North Carolina, a developer had already cleared 30 acres of bottom land hardwood swamp and erected a dam to create a lake before the violation was noted and reported. In this situation, restoration was so intricate that the developers could not use any other option. To avoid litigation and at Wilmington District suggestion, the landowner purchased an unregulated 60-acre Carolina bay and deeded it to the National conservancy. Corps accepted to engage no legal action and granted an after-the-fact permit. The owner of the land could claim a charitable contribution, while the nature Conservancy bought a priority site at less than a third of its value.

While some people lauded the creative resolution employed by Corps about the wooded swampland, others from both private conservation groups and public agencies pointed that no wooded swampland was restored after the conversion of the 30 acres land. Replacement of one wetland form for another could set a precedent for conversion of one wetland form with given wildlife habitat values, while protecting another with divergent resource and habitat values.

In some districts, most of violators assent to voluntary restoration. Some Corps districts may become triumphant than others in attaining voluntary restoration may. One method applied by the Wilmington District is to coordinate with the United States Attorney's office, which consequently sends a letter to the violator stating that a file has been opened on the case. Such precautions add weight to the voluntary restoration negotiations. In some cases, such agreements are not formed in good faith by violators and more actions must be taken by the involved districts. In some districts, voluntary restoration takes place in less than a quarter of the reported violations. However, Corps districts must be ready to grant after-the-fact permit or dismiss violations in other ways and institute litigation against violators (U.S. Congress 181).

Corps faces challenges in prosecuting violators. When violators fail to respond to Corps orders to stop projects that violate Section 404 principles, districts may request the United States district attorneys to prosecute. However, district attorneys are often reluctant to take on 404 cases and they consider them as being of less significance than other crimes, and of low priority in thousands of case handled each by the Department of Justice. Corps districts file approximately four percent of violations with the Department of Justice for prosecution while other cases are never submitted to justice department. Some cases submitted to the U.S. attorney's officer remain unresolved particularly, in cases where there lacks adequate proof to convict.

However, in cases resolved via the United States Attorney, penalties may comprise of restoration, fines or both. Fines are evaluated based on prior violation records and the extent to which restoration is possible. For instance, after its fifth violation in a period of two years, Texasgulf Co. voluntarily restored 6.5 acres in the Pamlico-Albermarle estuary at a cost of almost 200, 000 dollars and paid 5, 000 dollar fine. The Charleston District noted that it hardly requires fines. In South Carolina and North Carolina, courts are often reluctant to impose fines. When restoration proves to be costly, courts believe that restoration alone constitutes a sufficient penalty. Attorney's fees and penalties are viewed as a cost of performing business, while restoration requirements are important for an effective program. When restoration gets imposed, the violator gains nothing (U.S. Congress 182). People from several agencies as well as interests groups maintain that fines should be imposed in addition to restoration given that restoration does not replace the original resource. These people also claim that fines should be huge to serve as a deterrent.