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The Elbow Lake property is bordered by a swamp and contains
wetlands that are protected from development by Federal law.
Protected wetlands are subject to the jurisdiction of the
Environmental Protection Agency (EPA) and the U.S. Army Corps of
Engineers (Corps). To develop protected wetlands, a real estate
developer must obtain a permit from the local division of the
Corps under the Clean Water Act of 1977, Pub. L. 95-217, sec.
67(a) (commonly called a section 404 permit), 91 Stat. 1566,
1600, 33 U.S.C. sec. 1344 (1994), before commencing any
construction that causes discharge of dredge or fill material on
wetlands.4 See 33 U.S.C. sec. 1344 (1994). In 1987, the Corps
published a manual defining protected wetlands, Federal Manual
for Identifying and Delineating Jurisdictional Wetlands (1987
Manual). The Norfolk Division of the Corps, which has local
oversight of the Chesapeake, Virginia, area, followed the 1987
Manual to identify wetlands and to process section 404 permit
applications. Use of the 1987 Manual by a local division of the
Corps was not mandatory.
In late 1987 through 1988, Lakewood employed Douglas S.
Davis, a wetlands scientist and consultant, to determine the
4People associated with environmental wetlands issues
popularly refer to the required permit as a sec. 404 permit.
Sec. 404 refers to the section of the Federal Water Pollution
Control Act Amendments of 1972, Pub. L. 92-500, sec. 404, 86
Stat. 816, 884, that previously provided for the permit
requirement and was replaced by sec. 67(a) of the Clean Water Act
of 1977, Pub. L. 95-217, sec. 67(a), 91 Stat. 1566, 1600.
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Last modified: May 25, 2011