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Environmental Law Newsletter

Dredge and Fill Materials Regulated by the Clean Water Act

The United States Environmental Protection Agency (EPA) defines wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.”

The Clean Water Act Regulates the Use of Wetlands

Wetlands function to provide numerous benefits to the environment. For this reason, federal, state and local laws regulate their use and preservation. The predominant piece of legislation governing wetlands is the Clean Water Act (the Act). Although the Act was originally enacted in 1948, Congress has revised it several times, with the most recent revision completed in 1987. Portions of the Act have been further revised with the passage of other laws.

Environmental benefits provided by wetlands include the following:

  • Control of Flooding – in the periods following major storms, wetlands collect considerable volumes of water (that would otherwise cause flooding) and slowly release the water to prevent flood damage
  • Habitat Preservation – more than one-third of threatened and endangered species in the U.S. live exclusively in wetlands (nesting, breeding and feeding there), and approximately one-half of these animals spend at least some portion of their lives in wetlands
  • Improvement of Water Quality – wetlands slowly filter excess nutrients, sediments and other toxins from the water as it passes through them, maintaining the suitability of many bodies of water (e.g., rivers, streams, aquifers) for swimming, fishing and other uses

Given the significant environmental benefits provided by wetlands, the degradation or elimination of wetlands may have a detrimental impact on several important environmental functions.

Protections for Wetlands Under the Clean Water Act

Under the Act, the federal government possesses broad authority to enact standards and regulations pertaining to water pollution. However, numerous duties are allocated to the states as well. In broad terms, the Act forbids parties from discharging “fill” or “dredged” materials into the U.S. waters (including wetlands) without a permit.

“Fill material” constitutes any material that alters the base elevation of a body of water or supplants an aquatic area with dry land. Examples of fill material include dirt, gravel, rocks, concrete, sand or dock pilings. “Dredged material,” on the other hand, constitutes any material that is excavated from wetlands or other surface waters – or any material that is excavated from uplands to create surface waters. Filling and dredging wetlands may potentially cause flooding and affect water quality, thus harming wildlife.

Construction Activities May Harm Wetlands

The Clean Water Act may require permits for construction activities that involve the dredging and filling of wetlands and other surface waters. Among others, examples of construction activities that may require a permit include:

  • Water resource projects (e.g., dams, levees, dikes)
  • Road, bridge or boat ramp construction
  • The conversion of wetlands to uplands for forestry and farming
  • Infrastructure development (e.g., highways and airports)
  • Stream diversion or channelization
  • Land clearing, leveling or ditching activities

Although it may not be readily apparent whether a wetland exists on a proposed construction site, a contractor can still violate the Clean Water Act if dredge or fill materials are placed into a protected wetland without a proper permit.

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