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When Congress passed the original Clean Water Act (officially the Federal Water Pollution Control Act, hereafter referred to as the CWA) in 1972 it made clear that Federal protection extended our nation's wetlands. Congress passed the CWA "to restore and maintain the chemical, physical, and biological integrity" of our nation's waters: preservation of wetlands is critical to achieving this goal. Section 404 of the CWA plays an important role in protecting wetlands and, indeed, is the primary federal protection for those diverse ecosystems.
Before the 1972 Act "navigability" defined federal jurisdiction over water systems, as interpreted under the commerce clause. The CWA expands federal jurisdiction to include isolated waters and wetlands.
Many critics of the wetlands program deny Congress' intent to include these isolated waters. They cite the Army Corps of Engineers' efforts in 1974 to limit jurisdiction of the program to traditionally navigable water, thereby excluding most wetlands. But a federal district court found these regulations conflicted with the original intent of the Act, and in a 1975 ruling, concluded that the Corps must regulate actions in "isolated waters" including wetlands.
Since the 1975 case, Congress has passed two major amendments to the CWA, 1977 and in 1988 without challenging the courts' findings. Up to this point the wetlands jurisdiction has not been accepted by the courts and Congress.
In 1977, the Corps issued a final definition that was consistent with the Federal district court's decision. The Corps' new regulatory jurisdiction included "isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters of the United States, the degradation or destruction of which could affect interstate commerce," and has not been congressionally challenged.
There is a reason wetlands are part of the CWA. For instance, how many realize that when they reach for a clear glass of water they can thank upstream wetlands, or that the Louisiana's shrimp on their supper table were protected, in part, by Nebraska's wetlands. The CWA protects our nation's surface water, and all that depend upon it; wetlands play a part in that.
Threats to water quality are many. Sediment can destroy water systems by burying the fish roe, stifling organisms and blocking sunlight to aquatic plants. Bank erosion sloughs sediment into rivers, lakes and streams. Nutrients like animal waste and fertilizer wash into waters, stimulating weed growth and algae blooms and disrupting the balance of life with disastrous results. Toxic chemicals and pesticides poison the natural systems, and pathogens threaten animal and human health.
Wetlands can reduce or prevent these problems. Many wetlands slow and filter water reducing sediment and reducing erosion. Their soils can provide an anaerobic atmosphere which enhances the breakdown and the absorption of many toxic chemicals, nutrients, pesticides and pathogens. These wetland functions protect fish, shellfish, drinking water, beaches and more; wetlands help to achieve the goals of the Clean Water Act.
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