A Cumulative Approach to Regulation

When and how to regulate isolated wetlands- wetlands that are not physically adjacent to traditionally navigable waters, interstate waters, or their tributaries- under the Clean Water Act have been persistent questions since the §404 program was initiated in 1972. In many respects, the federal government's current stance toward regulation of isolated wetlands was derived not through a concerted effort to evaluate the ecological contributions of these areas and regulate them accordingly, but rather a default position defined largely by a series of court decisions throughout the 1970s and 1980s. As a result, a case-by-case analysis of a particular wetland's connection to interstate commerce is required in order to establish CWA jurisdiction over that wetland.