Horizon Information Portal

MSOE Library Home

MSOE Library Home

Home

The clean water act, its impact on business development, and the Fifth Amendment to the United States Constitution / by Nicole K. Hodkiewicz.

by Hodkiewicz, Nicole K.

Water -- Pollution -- Law and legislation -- United States

Wetlands -- Law and legislation -- United States

Wetland conservation -- Government policy -- Wisconsin

Wetland mitigation -- Wisconsin

vii, 115 leaves : ill. ; 29 cm.

Advisor: Donald Gallo.

Committee members: Dr. Bruce Thompson, Matthew Fuchs.

Introduction -- The Clean Water Act -- Business and economic development in consideration of wetland regulation -- The Fifth Amendment to the United States Constitution -- Analysis of study -- Findings and conclusions.

This thesis focuses on wetland regulation under Section 404 of the Clean Water Act (CWA). Wetland regulations have been blamed for devaluing business development opportunities and infringing on private property rights under the Fifth Amendment of the United States Constitution. The reason wetland regulations have been blamed is that one can not fill a wetland without a permit from federal and state governments. Reasons for individuals wishing to fill wetlands are varied. More common reasons include residential or commercial development, expansion of an existing plant operation, road building, and landfill locating. What has become known as the CWA was enacted in 1972 and amended in 1977 with the intention of protecting the Nation’s waters from degradation due to pollution. Section 404 of the CWA regulates dredging and filling in waters of the United States. Waters of the United States are not only considered to be lakes, rivers, and streams, but also wetlands. The United States Army Corps of Engineers (COE) is charged with administrating and enforcing Section 404 of the CWA. The COE enforces Section 404 through a permitting process. There are three wetland fill permits available from the COE: (1) Nationwide; (2) General; and (3) Individual. Each permit has limitations associated with it such as size of fill, type of fill, and wetland type. In addition to these permits, the State of Wisconsin has an additional step in obtaining a wetland fill permit: NR-103 Water Quality Certification. To fill a wetland in Wisconsin, one needs to procure one of the federal permits and state water quality certification issued by the Department of Natural Resources (DNR). When applying for a federal 404 wetland fill permit and state water quality certification, documentation needs to accompany the permit application showing that the applicant has looked at alternatives to filling the wetland and for minimizing impacts caused by the filling. If a wetland fill is under two acres in Wisconsin and for a relatively routine types of activity, a federal nationwide permit is issued by the COE. This permit is relatively easy to obtain. State water quality certification is not as easy. In their review for water quality certification, the DNR looks at all the functions of a wetland to determine if the particular wetland filling proposed will be detrimental. They also look at the practical alternatives to filling the wetland. If alternatives exist, chances are slim for the DNR to issue water quality certification even if a federal permit had already been issued. This two step process has been criticized for being confusing and too stringent on the state’s part. The regulations and permitting process have been challenged as violating the Fifth Amendment to the United States Constitution. The Fifth Amendment states: “...nor shall private property be taken for public use, without just compensation.”

Horizon Information Portal 3.25_9885

Powered by SirsiDynix

© 2001-2013 SirsiDynix All rights reserved.

Horizon Information Portal