Bersani v. EPA: The EPA's Authority under the Clean Water Act to Veto Section 404 Wetland-Filling Permits

Abstract:     
The public image of marshes has changed dramatically over the past century. First perceived as worthless swamps, wetlands are now considered to be priceless treasures. Congress, federal agencies, and the courts have struggled to keep up with this changing view, and the result has been confusion. Section 404 of the Clean Water Act authorizes the Corps to regulate wetland filling through a permit system and also allows the EPA to veto any of the Corps' permit decisions. Although the Clean Water Act creates a strong presumption against filling wetlands with soil and other materials, the Army Corps of Engineers and the Environmental Protection Agency have regularly allowed wetland filling. The inconsistency between the congressional mandate to preserve wetlands and the agencies' reluctance to implement that command is detrimental to both the natural and business environments of this country. In Bersani v. EPA, the EPA exercised its veto authority for only the sixth time in the history of the veto provision. In this article, the author argues that the Second Circuit correctly upheld the EPA's veto of a developer's permit application under section 404 of the Act.

Keywords: Wetlands, marshes, EPA, Army Corps of Engineers, Bersani, Clean Water Act

Accepted Paper Series