stressed preservation rather than reclamation.
The federal government limits development of wetlands by requiring a permit for ôthe discharge of dredged or fill material into the navigable waters at specified disposal sites.ö The Environmental Protection Agency (EPA) administers most of the CWA, but the granting or denial of Section 404 permits falls under the responsibility of the Army Corps of Engineers (Corps). The act also contains a host of exceptions related to runoff from normal farming activities.
At first, the Corps took a narrow view of its authority, exercising jurisdiction only over waters that traditionally would have been considered ônavigable.ö That changed after an environmental group sued the Corps in the 1970s and won. A federal court found that CongressÆ intent in passing the CWA had been to assert federal jurisdiction ôover the nationÆs waters to the maximum extent possible under the Commerce Clause of the Constitution.ö Based on the Commerce Clause, which allowed regulation of anything that ôaffects interstate commerce,ö federal jurisdiction was almost limitless. Therefore, even the smallest intrastate bodies of water theoretically fall under U.S. purview.
The Corps responded by expanding its jurisdiction to conform to the courtÆs decision. A challenge to that revised policy was rejected by the U.S. Supreme Court, which held that the CorpsÆ expertise was entitled to deference in determining whether a particular area constituted a wetland. Federal rulemakers codified those two decisions into the Code of Federal Regulations. Federal authority now explicitly extends to any waters, even those wholly within a state, which ôthe use, degradation or destruction ofàcould affect interstate or foreign commerce[.]ö
For example, the Corps justifies its regulation of isolated wetlands on the grounds that migratory birds and endangered species use the area, thus creating a connection...