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Changing Land to Water—The Alchemy of the Federal Wetlands Regulatory Scheme

Paul J. Schlauch, Thomas L. Strickland, Proceedings of 27th Annual Rocky Mountain Mineral Law Institute (1981)

Until relatively recently, swamps, bogs, marshes, and other wetlands were generally regarded as having little inherent worth, and valuable only if filled and developed. However, an increased understanding of the biological and hydrological function of these wetlands has resulted in a reversal of public attitude.1 Wetland preservation is now in vogue, and is the goal of numerous state and federal programs. Not unexpectedly, with the swing of the pendulum from a regulatory scheme which condoned wetland destruction to one which proscribes or severely limits the impairment of wetlands, have come a host of legal and policy issues. The following analysis traces the development of the current federal wetlands regulatory scheme, analyzes existing federal wetlands regulations [636] and policies, and discusses some of the legal issues presented by those regulations.2

Federal regulation of wetlands emanates from two sources: section 404 of the Clean Water Act and Executive Order 11990. The regulations promulgated to implement section 404 of the Clean Water Act and the policies announced by the Executive Order both involve some alchemy. Regulations under the Clean Water Act transform certain lands, which meet the complex and difficult-to-apply definition of wetlands, into waters of the United States, and by this definitional transmutation subject these lands to regulation as wate