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Protecting the nation's dwindling wetland resources under section 404 of the Clean Water Act has been a persistent and discouraging proposition. Section 404 of the Act "lies like an open wound across the body of environmental law." Given the ecological and economic value of the resource, this seems puzzling--but only for a moment. An examination of the federal wetlands permitting program reveals significant problems. These problems, combined with ingrained attitudes about the sanctity of private property, lack of public appreciation of wetland values, and insufficient political will to protect them, make it easy to see why wetlands continue to disappear, and why the federal wetlands regulatory program is one of the most controversial of the country's environmental programs.

Recent attempts by the federal government to improve the regulatory program, while laudable, have only served to magnify the program's problems. Each attempt has become a lightening rod for the program's many opponents. Two of these attempts will be discussed in depth in this article. Both initiatives involved the issuance of agency staff guidance documents: one, an inter-agency agreement on federal policy for mitigating wetland losses; the other, a manual containing technical criteria for delineating wetland boundaries. The controversy surrounding these documents has swirled into the halls of Congress and has reached as high as the Oval Office, threatening to unravel gains made in wetlands protection during the first year of the Bush Administration and threatening the very continuation of the federal program in its current form.

While it may be startling that the debate over these administrative initiatives reached such heights and gained so much momentum in the political structure, the controversy should not have been unexpected. In fact, the brouhaha was, sadly, all too predictable from prior experience with this extremely truculent area of environmental policy.

This article examines these two initiatives and attempts to show how the hostility with which they were greeted is illustrative of the deep-seated problems plaguing the wetlands regulatory program. In order to clarify these problems, this article places the initiatives against a backdrop of wetland losses and of imperfections in the protective regulatory program. The rationale behind the initiatives is examined and their contents parsed for the seeds of what was to come. The article concludes with some general recommendations, based upon this analysis, concerning where improvements could be made in the federal approach to protecting wetlands.

Publication Citation

8 Pace Envtl. L. Rev. 307-353 (1991)