The Indiana Law Journal & The Indiana Law Journal Supplement - http://www.indianalawjournal.org
Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act
http://www.indianalawjournal.org/articles/495/1/Supply-Demand-and-Consequences-The-Impact-of-Information-Flow-on-Individual-Permitting-Decisions-Under-Section-404-of-the-Clean-Water-Act/Page1.html
Alyson C. Flournoy

 
By Alyson C. Flournoy
Published on 08/14/2008
 

This paper focuses on a public trust resource—wetlands—and examines an issue that has been largely studied with reference to health-based pollution-control statutes.  This paper assesses whether information gaps create an obstacle to successful regulation under section 404 of the Clean Water Act (“CWA” or “the Act”) as it applies to discharges of dredged and fill material in wetlands. Because § 404 is a unique blend of pollution control regulation and natural resource management, the protection of wetlands under §404 provides an interesting lens through which to consider the impact of information demands.  The fundamental similarity between a health-protective chemical regulation statute such as § 6 of TSCA and § 404 is that both statutes seek to regulate activities that will introduce harmful substances into the environment. Moreover, § 404 is part of the CWA, a statutory framework that adopts largely a pollution-control approach to achieving its goals by focusing on avoiding harmful discharges into the environment. Yet, the goal of protecting functions and values of wetlands is a goal related to natural resource conservation, which is usually protected under the public trust doctrine.