Brief History of CWA
The primary purpose of the CWA is to protect and restore the quality of nation’s surface water by eliminating pollution from point sources (industrial outfall pipes, vessels) and nonpoint sources (agricultural runoff, stormwater). The CWA prohibits the dredge and fill of “waters of the U.S.,” which include wetlands, without a permit from the U.S. Army Corps of Engineers (33 U.S.C § 1344). The regulation of wetlands by the federal government has a long legislative history that originates in the 1899 Rivers and Harbors Act (RHA), originally enacted to preserve the navigability of water bodies used for commercial traffic. Section 13 of the RHA was known as the “Refuse Act.” It prohibited the deposit of “any refuse material” into any navigable water or tributary of such navigable water.
As the country’s focus shifted over the decades from navigation to clean water and the preservation of the biological and ecological integrity of the aquatic system, the Corps’ regulatory reach under the RHA extended farther and farther up the tributary system. The Corps’ previous experience with regulating obstructions to navigation and disposal of garbage led Congress to grant the agency CWA authority over the dredge and fill of wetlands. This inland expansion has been controversial and the limits of Corps jurisdiction are currently being worked out in the judicial and executive branches of the federal government (see the Clean Water Rule).
Section 404 of the Clean Water Act establishes the specific program that regulates discharges and fills into wetlands that constitute waters of the U.S. Section 10 of the Rivers and Harbors Act, which prohibits obstructions to the navigable capacity of waters of the U.S. without a permit from the Corps, is often invoked for wetland-fill activities on waterways and coastal waters, but the § 10 permit program essentially mirrors the §404 program.
CWA and Tidally Influenced Wetlands
The estuarine, coastal-fringing wetlands that are the focus of this review are well within the established reach of the Clean Water Act. There is no debate that tidally-influenced wetlands fall within the scope of the Clean Water Act. There may be some disagreement about where to draw the line in some places in terms of episodic events such as storm tides, but these are issues of details that do not affect the central regulatory focus that we are interested in.
Wetland Regulation Under the CWA
Because wetlands are part of the waters of the U.S., and their filling or destruction could impact the integrity of these waters, any activity that destroys or impacts wetlands requires a permit from the Corps. To obtain a permit, the applicant must show that the activity is water dependent, or that it can occur in no other place. The applicant must also demonstrate that action has been taken to avoid or minimize any impacts through improved design or strategic placement of the facilities. If impact is unavoidable, the applicant must provide a plan to mitigate for the lost functions and values of the wetlands that will be destroyed. Mitigation may take place by constructing new wetlands, or by preserving and enhancing or restoring existing wetlands.
There is considerable controversy and debate as to just how well the permitting and mitigation system works (Brown and Veneman, 2001; Sudol and Ambrose, 2002, Gonzalez et al., 2014). On the national level, there is no targeting of any wetland ecosystems of special concern for special protection. In many Corps districts, there is little proactive investigation of illegal filling activities (investigations are often only made when a report from outside the agency comes in). And there is evidence that many mitigation projects are not performing as designed (Brown and Veneman, 2001, Gonzalez et al., 2014). These deficiencies are pointed out not to criticize this system, but as important considerations in terms of how well specific policies, and their execution, might enable adaptation to climate change in terms of wetlands in the Gulf Coast region. The issue of proactive enforcement, in particular, has implications for thinking ahead in terms of the future impacts of climate change.
More importantly, in terms of policy implications for adapting to the potential loss of wetlands to SLR, there is no legal requirement to protect dry, potentially inundatable, lands just inland from coastal wetlands, at either the state or federal level. It is important to remember that the regulatory focus of the CWA is protecting the quality of surface waters. The dredge and fill of wetlands is restricted under the CWA, not because of the importance of wetlands themselves, but because of the impact their destruction can have on water quality and navigation. This traditional water quality and navigation focus may limit the ability of regulatory agencies to expand the scope of the CWA to address climate change impacts.
The Role of States: Section 401 of the CWA
Individual states, however, can influence federal permitting decisions through § 401 of the CWA. Under § 401, applicants for federal licenses or permits must provide the federal agency with a certification from the state in which the discharge originates that the discharge will comply with that state’s water quality standards. Through the water quality certification process, states can impose conditions on federal permits if they determine water quality will be impaired otherwise. Although §401 is a powerful tool, states may waive their certification authority if they so choose.
It is important to note that the CWA does not preclude any state from developing their own set of wetland regulations, which can be more stringent than the federal statutes. State regulation, if it is to supplant federal regulations may not be weaker than the CWA. The fact that the CWA leaves room for the establishment and implementation of state wetland laws suggests that there is sufficient flexibility within the existing legal framework for state action, if the political will were there.