This paper focuses on a public trust resource -- wetlands -- and examines an issue that has been studied primarily 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. It focuses on how section 404 and the regulations governing permitting determine information demands, information supply, and the legal consequences of a gap between supply and demand. The goal of this inquiry into the demand/supply/consequences scheme is to determine if, taken as a whole, the scheme is coherent and rational in light of the policies that underlie section 404.
Alyson C. Flournoy, Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions under Section 404 of the Clean Water Act, 83 Ind. L.J. 537 (2008), available at http://scholarship.law.ufl.edu/facultypub/60