and that adjacent wetlands “play a key role in protecting and enhancing water quality.”
As a legal matter, the CWA does not regulate all activities in all wetlands. For example, early in 2001 the U.S. Supreme Court ruled that the assertion of federal jurisdiction over some isolated waters is an unreasonable interpretation of the CWA (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 2001). This ruling came soon after other court rulings that, taken together, have limited the scope of the federal permitting program. However, numerous states and other nonfederal governments have wetland permitting programs that complement and supplement the federal authority (Want 1994). While the committee's charge is to focus on the CWA Section 404 program, its conclusions and recommendations are applicable to both federal and state regulatory programs.
Over the nation's history, wetlands have been drained and filled for farmland and urban development, mosquito control, and many other activities. However, when wetlands are lost, so are the many functions that they provide within landscapes (Mitsch and Gosselink 2000). Although not all wetlands provide all functions, wetland functions can include water-quality improvement; water retention, which helps to ameliorate flood peaks and desynchronizes high flows in streams and rivers; groundwater recharge; shoreline stabilization; and provision of a unique environment, part aquatic and part terrestrial, that supports a diversity of plants and animals, including a majority of the nation's rare and endangered species. In recognition of these functions and their significance to the CWA, the goal of no net loss of wetland area and function was introduced at a national wetland policy forum by the Conservation Foundation in 1988, endorsed by the federal administration in 1990, and supported since. The no-net-loss goal lies behind the federal agencies' efforts to develop Section 404 guidelines that will secure compensation for permitted wetland impacts. The goal was articulated by the agencies in their 1990 Mitigation Memorandum of Agreement (MOA) (see Chapter 4). In its work, the committee accepted the no-net-loss goal as a basis for national wetland policies.
When there is a proposal to discharge dredged or fill material into a wetland, the CWA expects that the Corps, in cooperation with other agencies, will consider the public-interest consequences of issuing a permit. In practical terms, implementation of Section 404 and related programs has followed a general policy that the deliberate discharge of materials must be avoided where possible and minimized when unavoidable. Then if a permit is issued and wetland functions are compromised, some kind of compensatory mitigation may be required to replace the loss of the wetland's functions in the watershed. The Committee on Mitigating Wetland