Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics Book

Acknowledgments xv

Introduction 1

Chapter 1 The Ebb and Flow of Public Perceptions of Wetlands 5

Chapter 2 Administrative Law: The Short Course 15

What are agencies and who made them the boss? 17

What exactly does an agency do? 22

How are regulations made? 23

What's the difference between a regulation and mere guidance? 25

Navigating from statute to regulation to guidance 25

I'm mad as hell and not going to take it anymore: How to challenge agency actions 28

Executive Branch 28

Legislative Branch 29

The Media 29

Judicial Branch 30

Constitutional Considerations 30

Statutory Standing 32

Ripeness 33

Chevron Deference 33

Chapter 3 What's a Wetland (for purposes of Clean Water Act jurisdiction)? 35

The initial interpretation of "waters of the United States": We've always done it this way 37

United States v. Riverside Bayview Homes: Unanimity on adjacent wedands 39

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers: A split decision on "isolated" waters 44

Rapanos v. United States: A trifurcation of confusion 48

post-Rapanos response 52

The constitutional limits of the Clean Water Act 54

Chapter 4 Dredge and Fill: The Importance of Precise Definitions 57

A lesson for young lawyers: Read the statute 57

Does landclearing require a Clean Water Act permit? 58

Does dredging (and sidecasting) require a Clean Water Act permit? 59

Neatness counts: Exploiting a loophole 61

The inevitable blowback: The regulated community responds 62

Deep plowing or deep ripping? The Borden Ranch case 64

Fill, baby, fill 65

Mountaintop removal and nationwide permit 21 67

Strange things done in the midnight sun: Gold mining waste as fill 69

Chapter 5 Strange Bedfellows: The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers 73

The misnamed 404(b)(1) Guidelines: More than mere guidance 75

The heart of the Guidelines: The alternatives analysis 76

Fund for Animals v. Rice: The alternatives analysis in practice 78

Defining the project purpose of a golf course: Jack Nicklaus takes a mulligan 79

Mississippi casinos: Is gambling a water-dependent activity? 81

Sweedens Swamp and the market-entry theory: "It depends on what the meaning of the word 'is' is." 84

The mitigation MOA: Resolving the buy-down and sequencing dispute 86

The old Corps returns: The EPA vetoes the Yazoo River Project 89

Chapter 6 No Net Loss: Lies, Damned Lies, and Statistics 93

The starting point: A nation of farmers 94

If you build it, they will come 95

The other illegal alien problem: Invasive species 97

Agricultural sticks and carrots: Swampbuster and the Wetlands Reserve Program 100

Offsetting development impacts: Compensatory mitigation 101

The Cajun solution: Eat a nutria, save a wedand 102

Net gains on agricultural lands 104

Paper gains, real losses: The failure of permittee-responsible compensatory mitigation 105

No net loss: Mission accomplished? 109

Chapter 7 Wetland Mitigation Banking: Banking on Entrepreneurs 111

What is wetland mitigation banking? 112

The legal status of mitigation banking (the early years) 114

Pembroke Pines: The first sale of credits from an entrepreneurial mitigation bank 115

The 1995 mitigation banking guidance 117

Congress provides a market (and ratifies the guidance) 119

How much can I sell a wetland credit for? 120

The good, the bad, and the ugly 123

Panther Island Mitigation Bank (Florida) 123

Mud Slough (Oregon) 124

Black River Basin Mitigation Bank (South Carolina) 124

Woodbury Creek (New Jersey) 125

They're only in it for the money (and other criticisms of mitigation banking) 126

Chapter 8 In-lieu Fee Mitigation: Money for Nothing? 129

What is in-lieu fee mitigation? 129

The legal status of in-lieu fee mitigation (the early years) 132

"Educational" mitigation 133

Conflict of interest: Agency as regulator and competitor? 134

Timing in life is everything 135

But they're the good guys! 136

The 2000 in-lieu fee guidance 137

Tracking in-lieu fee performance (or the lack thereof) 138

Chapter 9 Leveling the Mitigation Playing Field 141

An initial attempt at standards for permittee-responsible mitigation: The Halloween guidance 141

You could have at least called ... 142

Lack of public input: Perhaps ill-advised, but legal 143

Out of chaos comes order: The National Mitigation Action Plan 144

Congress (re-)enters the fray 145

Proposed compensatory mitigation rule 146

O'Harc Airport and the return of CorLands 147

Reconsidering in-lieu fee mitigation 149

Finally, the final rule emerges 151

Sequencing and avoidance 151

Equivalency in mitigation plans 152

Nonequivalency in the timing of the use of mitigation credits 153

The mitigation hierarchy 155

But is the compensatory mitigation regulation good for the environment? 156

Chapter 10 Wetland Enforcement: The Ultimate Discretionary Act 159

Who is the lead enforcement agency? 159

Every day is a new day: The continuing violation theory 161

Hobson's choice: No pre-enforcement review of administrative orders 163

After-the-fact permits: All is forgiven 164

Administrative penalties: Adjudication by the agencies 165

Civil penalties: Potentially real money, rarely invoked 166

Settlements, supplemental environmental programs, and other payments 168

Criminal penalties: Muddy jackboots? 169

The least sympathetic defendants 171

Citizen suits: Backing up the government 172

Enforcement of permit conditions: A gap in citizen suits 172

Enforcement of third-party mitigation providers: Does responsible mean liable? 173

Chapter 11 Regulatory Takings in the Wetland Context 177

Preliminary hurdles: Ripeness 178

Choosing a forum: U.S. District Court or the U.S. Court of Federal Claims 180

The Penn Central factors 181

Applying the Penn Central factors: The Florida Rock saga 181

Of rats, rabbits, and reasonable investment-backed expectations 183

Lucas v. South Carolina Coastal Council: No need to balance factors 184

The irrelevance of Lucas 186

Reasonable investment-backed expectations revisited 187

The most sympathetic takings plaintiffs 188

How should the Corps weigh the risks of a takings case? 189

Chapter 12 Concluding Thoughts and Recommendations 191

Epilogue: Where Are They Now? 199

Appendix 209

Clean Water Act (excerpts) 209

Epa Regulations 40 CFR Part 230 (excerpts) 211

Corps Regulations 33 CFR Parts 320-332 (excerpts) 214

Clean Water Act Guidance Document (excerpts) 220

Endnotes 223

Selected References and Further Reading 229

Index 245