Wetlands Bureaucratic Wars: Courts May Shift Balance of Power

Abstract

The Federal Water Pollution Control Act, which later became the Clean Water Act, handles pollution from industrial and commercial discharges differently from dredge and fill pollution associated with waterway maintenance and navigation. Congress divided responsibility for the latter between the Environmental Protection Agency and the Corps of Engineers. Some ambiguity has arisen as to which agency has primary responsibility for the 404 permit program. Although the Corps is presumed to have major administrative responsibility, the Environmental Protection Agency through its veto power to the permit system has become the dominant agency since 1980. A Virginia project that involves a permit to destroy wetlands for an urgently needed water supply illustrates the problems associated with shared responsibility. The validity of a permit for this project is currently in the courts. There is the possibility that the policy guiding the current 404 permit program may change, at least with respect to permits involving water supply. The ultimate decision in this case could make significant changes in the operation of the 404 permit program in the future.