NEED TO KNOW
CLEAN WATER ACT ABUSE: WETLANDS
PROTECTION UNDER SECTION 404
The Clean Water Act (CWA) was enacted in 1972 “to restore and maintain
the chemical, physical, and biological integrity” of the nation’s rivers, lakes,
and streams (2). But for years federal regulators have used the CWA to
relentlessly expand their reach over both land and water use. One
particularly controversial example is the use of the CWA’s Section 404,
which covers wetlands.

QUICK FACTS
The average applicant hoping
to develop his or her own
property that contains a
wetland will spend nearly 800
days and some $300,000
working with federal
authorities to do so.

NOTABLE & QUOTABLE

Nevertheless, years of legal battles have allowed federal environmental
regulators to expand their jurisdiction to include wetlands, mainly by:

“EPA’s interpretation of the
Clean Water Act … knows no
bounds, as the agency sees
nearly every body of water in
the United States, no matter
how insignificant as
potentially falling within its
reach.”

1) Interpreting “navigable waters” to include wetlands (even if they are not
“navigable” by any stretch of the imagination), and

- Sen. James Inhofe, (R-OK)
(1)

A plain reading of Section 404 gives no indication of federal jurisdiction over
wetlands. The statute merely requires property owners to get a permit
before they discharge “dredged or fill material into navigable waters” (3).
The CWA defines navigable waters as “waters of the United States, including
the territorial seas” (4). Wetlands are never mentioned.

2) Prohibiting many more activities on wetlands besides filling them with
sand or dredged material.

“NAVIGABLE WATERS” AND THE EXPANSION OF FEDERAL
REGULATION
The Constitution’s “commerce clause” allows the federal government to regulate only interstate commerce; any
activities that occur entirely within a state (“intrastate”) and do not have a significant impact on interstate
commerce must be left to the states to regulate. To avoid running afoul of this Constitutional limitation, the CWA
was designed to regulate only “navigable waters” of the United States – waterways that are involved in interstate
commerce via activities like boat traffic. It is not clear that wetlands fall under this definition, but federal regulators
have included wetlands in several CWA implementing regulations anyways in their quest to expand their
jurisdictional reach.
In 2006, the Supreme Court halted this expansion, arguing in Rapanos v. United States that the Constitution called
for some limit to the CWA’s regulatory reach. John Rapanos faced criminal charges for filling in a march that was
entirely on his own land in Midland, Michigan in order to build a mall. Filling in this wetland, even though it had no
significant nexus to any navigable waterway, violated the CWA according to federal regulators. The Supreme Court
reversed the charges, with Justice Scalia remarking that federal regulators had “stretched the term ‘waters of the
United States’ beyond parody.” The CWA could not be used to restrict activity on private property like that owned
by Mr. Rapanos because it was not directly connected to “navigable waters” (and thus interstate commerce) (5).

 However, a recently released guidance document from the Environmental Protection Agency and the
Army Corp of Engineers, the two entities that administer the CWA, carefully circumvents the Rapanos
decision and again attempts to expand regulators’ jurisdiction to include isolated wetlands or anything
resembling a wetland (6). This has set off considerable backlash from conservative lawmakers and
various legal scholars.

EFFECTS ON PRIVATE PROPERTY RIGHTS AND THE ECONOMY
When environmental regulations like these prevent private property owners from building housing or
commercial real estate, clearing and cultivating for agriculture, or extracting natural resources on their
own land, this causes a severe deterioration in the value of their property. Imagine the frustration of
buying a plot of land only to have the land rendered unusable by over-zealous federal regulators.
Thankfully, there are Constitutional protections to safeguard property owners from regulators. Courts
have ruled that when the federal government regulates private property so intensively that it essentially
prohibits any valuable use for the landowner, these “regulatory takings” make the property owner
eligible for “just compensation” from the government under the Fifth Amendment. In other words, if the
federal government completely destroys property’s value in the name of environmental protection, they
must pay the owner for it just the same as if they had taken it outright. Unfortunately, court cases like
these are often drawn-out and ultimately fruitless affairs, wasting property owners’ time and money.
In the end, property owners’ primary recourse is to apply for a permit and cross their fingers that the
government will approve it. But this is an arduous process and often results in failure. One recent study
found that the average applicant hoping to develop his or her own wetland property will spend 788
days and $271,596 working with federal authorities to do so. Those compliance costs and lost
opportunities represent a significant barrier standing in the way of activities that productively
contribute to our economy.

Endnotes:
1.
SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, EPA Water Permitting Guidance Widely Extends
Federal Bureaucracy Over Water Bodies (April 27, 2011) (online at
http://epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=98e0c58b-802a-23ad-4772-89
859656e00d&Region_id=&Issue_id=).
2.
Federal Water Pollution Control Act (“Clean Water Act”), Sec. 101(33 U.S.C. 1251) (hereinafter “CWA).
3.
CWA, Sec. 404 (33 U.S.C. 1344).
4.
CWA, Sec. 502(7) (33 U.S.C. 1362).
5.
Rapanos v. United States, 547 U.S. 715 (2006).
6.
ENVIRONMENTAL PROTECTION AGENCY AND ARMY CORPS OF ENGINEERS, Draft Guidance on Identifying Waters
Protected by the Clean Water Act (April 2011) (online at http://www.epa.gov/indian/pdf/wous_guidance_4-2011.pdf).
7.
Avoyelles Sportmen’s League, Inc. v. Marsh, 715 F2d 897 (5th Cir. 1983) (online at
http://www.wetlands.com/fed/avoyelle.htm); Save our Community v. EPA, 741 F. Supp 605 (N.D. Texas 1990) (online at
http://www.wetlands.com/fed/socvepa1.htm); Richard Miniter, ‘Wetlands’ Send Man Up the River, INSIGHT ON THE NEWS, Vol.
8, No. 50 (December 1992) (online at http://richardminiter.com/pdf/19921214-art-insight.pdf).
8.
Benjamin Barr, Muddy Waters: Deconstructing the Clean Water Act in Arizona, THE GOLDWATER INSTITUTE (January
29, 2008) (online at http://goldwaterinstitute.org/sites/default/files/Muddy.pdf).

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