VIRGINIA S. ALBRECHT
Beginning with the National Environmental Policy Act in 1969, the Clean Water Act in 1972, and the Endangered Species Act in 1973, the federal government assumed a preeminent role in defining and implementing national environmental policy that influences the built and natural environment. Earlier federal laws had attempted to address water pollution problems by establishing water quality standards and enforcing those standards through private lawsuits, but those laws had demonstrably failed: the Cuyahoga River caught fire; Lake Erie was dying. Early efforts to protect endangered species were equally unavailing. International trade in rare species continued unabated. The new statutes took a different tack. They included the carrot of federal money-for example, to upgrade municipal sewage treatment plants so that they would no longer discharge untreated sewage into our nation's waters-but they also relied on, and continue to rely on, the stick of federal regulation backed up by the threat of federal enforcement, civil and criminal.
The Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, established a massive permitting program, requiring anyone who discharges pollutants into “navigable waters” to obtain a federal permit before doing so. Pollutants was defined broadly to include clean soil, and navigable waters was defined as “waters of the United States, ” including wetlands “adjacent” to navigable waters. Put those ideas together and you have a program that regulates most alterations of most waters or wetlands in the nation. When the agencies administering the CWA