Section 404 at Thirty-Something: A Program in Search of a Policy
44 Pages Posted: 20 Jul 2011
Date Written: 2004
In 2002, as the Clean Water Act turned thirty, the program that regulates the discharge of dredged and fill material into water and wetlands was beset by an all too familiar turbulence. The Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers had churned up debate and litigation over the jurisdictional reach of section 404 of the Act. That same year, the National Academy of Sciences and the General Accounting Office both issued reports criticizing the implementation of mitigation requirements under section 404, the latest in a long series of reports critiquing the program and the Army Corps of Engineers. Over the years both governmental and non-governmental reports have highlighted the persistent gaps in knowledge, enforcement, monitoring, funding, and interagency coordination under 404, and the attendant disappointing results.
This turmoil on the eve of the CWA’s thirtieth anniversary highlights important tensions that have beset the 404 program from its inception. Over the past thirty years, scholars have provided detailed and trenchant critiques of wetlands regulation under section 404, detailing its shortcomings, agency and executive missteps, and proposed improvements. This article seeks to gain whatever advantage the perspective of thirty years offers, to sketch the overarching picture that emerges from a look at 404’s history.
The perspective of thirty years confirms that we can no longer afford to focus on the narrow issues at the expense of broader reform, if we truly wish to conserve wetlands. The narrow reform efforts that have preoccupied policy debates provide a limited context for resolving the significant issues. Moreover, by focusing our attention on technical issues, we have avoided confronting basic facts about wetlands and wetlands conservation that are well-known, and the value choices that face us. First, it is virtually impossible to assess the 404 program’s success because it lacks a clear goal. Second, we lack not only a coherent policy governing wetlands, but a meaningful debate about policy and the values that should drive our policy. Third, we have failed to recognize the facts that are known about the ongoing degradation and loss of wetlands occurring under current wetlands law and policy. Without an honest policy debate that openly addresses the questions of what we value and why, and the effect of current practices on that which we value, we will never develop policies that can mature and have long-term effect.
Keywords: section 404, wetlands regulation, wetlands law, wetlands policy, wetlands reform, wetlands loss
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