404 not enough

Federal wetlands legislation is failing to curb wetland destruction. Federal jurisdiction over wetlands is determined by the commerce clause in the constitution governing interstate commerce. this is the bases for the Clean Water Act (33 U.S.C. 1344) which was passed to maintain restore and protect the nation's water ways. within this act, section 404 is used to gain federal jurisdiction over wetlands and tributaries. 202 states that the Secretary may issue permits after notice and opportunity for public hearings for the discharge of dredged or fill materials into the navigable waters at specified disposal sites. the US Army Corps of Engineers Wetland Delineation Manual further explains the secretary of the army, acting though the Chief of Engineers, to issue permits for the discharge of dredged or fill materials into the waters of the United States was made by congress to expand coverage of 404 to wetlands.

However the usage of section 4o4 for wetlands protection is like putting a square peg into the round hole. the section does not forbid the destruction of wetlands or waterways for that matter. All 404 does, is to require the government permission before placing things into the water. This leads to the second problem with the section, removal of items. This is first stated by the court case United States v. James J. Wilson where if he had just taken the dirt from the ditch that was being dug to another site the corps of engineers would not have been involved, next was Save our community v. EPA, where pumping a lake dry was deemed not a violation of 404, to the American Mining Congress v. COE and National Mining Association v. COE that invalidated Tulloch 1 and 2, which had essentially banned mechanized excavation of wetlands. All these cases point out the large loop hole in section 404. The Federal Government can only regulate what people put into a wetland, not what they take out. As stated before so long as they don't add anything to the site people may remove plant life and dig drainage ditches to change the hydrology of the wetland into dry land.

Currently the courts have pointed out that the EPA or the Corps cannot regulate these activities because congress has clearly not expressed that such activities are to be regulated. Since the overturning of the Tulloch rules, many states have found themselves unprepared to protect these Jurisdictional wetlands and have thus lost many of them.

Section 404 ultimately does not work for the purpose of wetland protection. What is needed is a new section that will focus on wetlands and their protection. This can only be done by an act of congress. We need to petition our representatives to create and back a more comprehensive section to the Clean Water Act dealing with wetlands specifically. until then we will continue to loose millions of acre of this precious land each year.