Regulation of wetlands in the United States: definition and history

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.

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.

Districts vary greatly in the number of cases they submit for litigation purpose and the prosecution results. Numerous districts are frustrated by lack of action from the department of justice low fines or lack of restoration order by courts or dragged legal process. The legal procedure affords low-priority service given the expansive frustrations and delays making enforcers to seek for other solutions. The Corps must coordinate its enforcement endeavors with those of the state program. A State can prosecute violators under the State wetlands rules more readily than the Corps could obtain assistance of the court under section 404 of CWA. Coordination with the State is promoted with monthly enforcement conferences. State programs with administrative legal judges have the capacity to handle section 404 violations.

EPA subject to Clean Water Act section 309 issues administrative Compliance Order (Connolly, Johnson and Stephen 18). The Administrative Compliance Order is the ultimate agency operation reviewable via the APA (Administrative Procedure Act). Agencies may not impose lawfully binding orders on controlled parties in absence of due process. For instance, in Tennessee Valley Authority vs. Whitman 2003 case, the appeals court held that TVA be provided with a prospect to contest the foundation of an administrative compliance order presented by the EPA. This is because Administrative Compliance Order are provided without affording the alleged violator any right to hearing. However the standards of the 5th Amendment must be upheld and the violators accorded the rights to due process, to grand jury, and protection aligned with double jeopardy.

However, in TVA case, the absence of advance procedure did not render the issued Administrative Compliance Orders invalid, but implied that ACO may not be enforced in absence of some prospects to contest its foundation. The EPA has the right to bring an action in the federal court to put into effect the Administrative Compliance Orders while the TVA held the right to challenge the alleged violation. The ACO is viewed like a complaint as opposed to an ultimate determination that a violation has take place. Due process may as well be satisfied in some contexts with a consultative, informal process (Beeermann 125).

According to Kamienieck and Kraft, the Supreme Court's sometimes conflates the due process clause analysis with the Taking Clause analysis. The taking clause holds twelve words only, "nor shall private property be taken for public use, without just compensation." This is per the provision of 5th amendments of the United States Constitution. The words in this clause serves as a probable constraint on any directive scheme that might lead in inverse condemnation or an efficient taking of private property via regulation as opposed to through physical occupation or eminent domain of the private property, both of which apparently calls for just compensation.

The directive agencies must as a result be keen in some situations to the effect of their set of laws on the fiscal worth of private property subject to regulation. This is crucial to both state and federal environment regulators who include the Corps of Engineers under section 404 of Clean Water Act, local governments, the Fish and Wildlife Service among others. The cost to the agency influencing a taking is to offer a just compensation and it is not adequate to invalidate regulation (Connolly, Johnson and Stephen 19). The opportunity of having to pay for taking claims constraint some regulators. The judicial understanding and employment of the taking analysis therefore holds a significant role in the degree to which environmental policy influences activities by private property owners.

The Clean Water Act section 301 allows permits issued pursuant to directives promulgated under CWA section 404, a legal precondition to the discharge of fill or dredged material into the United States waters. When a discharge of fill or dredged material takes place in absence of a section 404 permit, section 309 of the Clean Water Act allows for the initiation of a civil action or administrative orders for such violation (Connolly, Johnson and Stephen 19). Administrative orders set forth the needs for bringing violations into compliance with section 301, and may include measures such as full restoration of the obstructed area and a plan for compliance monitoring.

The United States Environmental Protection Agency vigorously pursues enforcement of CWA section 301 for unpermitted discharges of fill or dredged material into waters of the United States that include stream and wetlands systems. Numerous administrative actions are taken which calls for complete or partial restoration of disturbed streams or wetlands (Connolly, Johnson and Stephen 18). EPA offers ACOs in pursuance of enforcement actions after detection of violations through notification by citizens, discovery routine field by the EPA and the Corps of engineers (Connolly, Johnson and Stephen 20) .

Conclusion

Almost half of all wetlands that subsisted in the continental United State are untraceable. However, several states still hold substantial wetlands tracts. These wetlands contribute to the general balance of ecosystems. Wetlands hold crucial roles for human habitation predominately through groundwater recharge, flood control and water filtration besides offering habitat diverse economical valuable animal and plant species. Wetlands also offer habitat to plant and animal species controlled by state and federal species regulatory statutes. While these species do not necessarily hold any economic value, their inherent value has supported their protection through the government.

Wetlands regulation has emerged in the last quarter-century as an important and conflict-ridden issue on the nation's environmental policy agenda. The case law and statutory history linked to wetlands indicates that the model for federal involvement in regulation of wetlands is well established. The significance of wetlands as ecological, aesthetic and economic resources implies that the federal engagement in the control and utilization of these resources will constantly remain. Contrary to the views of scores of casual observers of environmental preservation, no federal legislation is specially designed to direct the preservation and usage of wetlands. However, federal control of wetlands use is obtained from section 404 of the federal Water Pollution Control Act or the Clean Water Act endorsed in 1972. The expansive authority to control wetlands resources is granted to Environmental Protection Agency via the Clean Water Act.

Under Clean Water Act Section 404, it is unlawful for anyone to discharge fill or dredged material into the navigable waters of the United States without having authorization from the Corps of Engineers. USACE's permit issuance is subject to an executive proscription by the EPA, and recommendation and comment of a variety of federal agencies including USFWS, and in given regions, the (NMFS) National Marine Fisheries Service, TVA ( Tennessee Valley Authority) or the U.S. Coast Guard. Under Section 404 of the Clean Water Act, the EPA has six established objectives, which include formation of a framework for full execution of Section 404 discharge and fill programs, guarantee compliance with the laws under section 404 and facilitate the section 404 transfer to states. EPA also creates and implements enforcement programs, create and implement programs that support education and inspire the involvement of the public in the section 404 program besides evaluating and fostering research that is supportive of the section 404 mission.

Enhancements in the scientific recognition of wetlands since 1987 and the regulatory process refinement via experience gathered in the past years of extensive wetlands control calls for a novel federal delineation manual that should be applicable by all federal agencies included in wetlands regulation. The novel manual perhaps should draw from the strengths of the existing manuals, but should not be similar to the present manuals. The novel manuals should encompass some alterations in current practice and some solutions to the previous issues of regulatory procedure. They should also raise emphasis on regionalization within a blueprint of federal standards. This is because unavailability of crucial information depicts a need for research in chosen wetland features where insufficient information blocks the delineation and identification of wetlands.

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