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of Engineers, in charge of issuing permits,
adopted an expanded dei nition of “waters of
the U.S.” to contain non-navigable waters includ-
ing wetlands (Chertok and Sinding 2005). Mean-
while, early cases in front of the courts used the
Army Corps of Engineers' expanded dei nition,
thus laying down legal precedent. The dei ni-
tional confusion was based in part on the failure
of Congress to address this issue adequately in
1972 or later in 1977 when it made amendments
to the Clean Water Act (U.S. Environmental Pro-
tection Agency 2010).
The permit system used by the U.S. Army
Corps of Engineers directs that no dredging
activity be permitted if alternatives exist. Fur-
thermore, preliminary studies must be carried
out on site to minimize the potential impact of
the dredging and i lling activities on wetlands,
avoid the activity altogether where practical, or
engage in mitigation activities for unavoidable
impacts (U.S. Environmental Protection Agency
2010). Mitigation includes providing compensa-
tion for unavoidable impacts through the resto-
ration or creation of wetlands elsewhere. The
Army Corps of Engineers cannot issue a permit
if the wetland performs important biological
and ecological functions, or when the ecological
and economic costs outweigh the benei ts
proposed. The U.S. Environmental Protection
Agency (US EPA) has the statutory authority to
designate wetlands that are subject to permits
and has the ability to veto the Army Corps of
Engineers' decisions (US EPA 2010).
The enforcement of Section 404 includes
issuing administrative compliance orders requir-
ing violators to cease illegal activity, remove
structures to restore sites, and assess civil penal-
ties. For more egregious violations, the U.S.
Environmental Protection Agency (US EPA) and
the Army Corps of Engineers exercise their crim-
inal enforcement authority, which could lead to
jail time and compensation costs (US EPA 2010).
In 1985, the “swampbuster” provision in
the Food Security Act took a markedly differ-
ent approach to wetland protection. It man-
dated that farmers undertaking alterations that
adversely impacted wetlands on their property
would be ineligible for many U.S. Department
of Agriculture benei ts programs, including
Figure 14-4.
Boundary sign marking a wetland reserve
for a playa on the High Plains of southwestern Kansas,
United States. Photo by J.S. Aber.
loans and price support payments (Williams
2005). Thus, rather than a permitting system
with civil or criminal consequences, the “swamp-
buster” provision provided disincentives to
discourage wetland alterations. The Wetlands
Reserve Program was authorized as part of the
Food Security Act of 1985 and amended in Farm
Bills of 1990 and 1996 (Natural Resources
Conservation Service 2010d). It is a voluntary
program to encourage private property owners
to restore and protect wetlands (Fig. 14-4). In
return for signing conservation easements, land-
owners receive payments for restoration from
the U.S. Department of Agriculture.
Finally, the No Net Loss Policy was an
outcome of the 1987 National Wetlands Policy
Forum convened by the Environmental Protec-
tion Agency to look at wetland management
in the United States. Among other issues, the
Forum identii ed that there should be no
overall net loss of the remaining wetlands base,
and that the restoration of wetlands should
be undertaken where feasible (Mitsch and
Gosselink 2007). This did not necessarily argue