b'Wetlands Law:\nA Course Source\nSecond Edition\n\nStephen M. Johnson\nCALI eLangdell\xc2\xae Press\n\n\x0cWetlands Law: A Course Source\nSecond Edition\n\nStephen M. Johnson\nW.F.G. Professor of Law\nMercer University School of Law\n\nCALI eLangdell Press 2017\n\n\x0cNotices\nThis is the second edition of this casebook, updated June 2017. Visit http://elangdell.cali.org/\nfor the latest version and for revision history.\n\nThis work by Stephen M. Johnson is licensed and published by CALI eLangdell Press\nunder a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC\nBY-NC-SA 4.0). CALI and CALI eLangdell Press reserve under copyright all rights not\nexpressly granted by this Creative Commons license. CALI and CALI eLangdell Press do\nnot assert copyright in US Government works or other public domain material included\nherein. Permissions beyond the scope of this license may be available through\nfeedback@cali.org.\nIn brief, the terms of that license are that you may copy, distribute, and display this work, or\nmake derivative works, so long as\n\xef\x82\xb7\n\nyou give CALI eLangdell Press and the author credit;\n\n\xef\x82\xb7\n\nyou do not use this work for commercial purposes; and\n\n\xef\x82\xb7\n\nyou distribute any works derived from this one under the same licensing terms as\nthis.\n\nSuggested attribution format for original work:\nStephen M. Johnson, Wetlands Law: A Course Source, Second Edition, Published by CALI\neLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered trademarks owned by the\nCenter for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work\nby Lyndsey Johnson, all rights reserved, used on this edition with her permission. The CALI\ngraphical logo is a trademark and may not be used without permission.\nShould you create derivative works based on the text of this book or other Creative\nCommons materials therein, you may not use this book\xe2\x80\x99s cover art and the aforementioned\nlogos, or any derivative thereof, to imply endorsement or otherwise without written\npermission from CALI.\n\ni\n\n\x0cThis material does not contain nor is intended to be legal advice. Users seeking legal\nadvice should consult with a licensed attorney in their jurisdiction. The editors have\nendeavored to provide complete and accurate information in this book. However, CALI\ndoes not warrant that the information provided is complete and accurate. CALI disclaims all\nliability to any person for any loss caused by errors or omissions in this collection of\ninformation.\n\nii\n\n\x0cAbout CALI eLangdell\nPress\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a nonprofit organization\nwith over 200 member US law schools, an innovative force pushing legal education toward\nchange for the better. There are benefits to CALI membership for your school, firm, or\norganization. ELangdell\xc2\xae is our electronic press with a mission to publish more open books\nfor legal education.\nHow do we define "open?"\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and e-readers; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more lenient copyright\npolicies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials for free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org. Show support for CALI\nby following us on Facebook and Twitter, and by telling your friends and colleagues where\nyou received your free book.\n\niii\n\n\x0cSummary of Contents\nNotices ............................................................................................................................. i\nAbout CALI eLangdell Press ........................................................................................... iii\nSummary of Contents......................................................................................................iv\nTable of Contents ............................................................................................................vi\nAcknowledgments .......................................................................................................... xii\nAbout the Author ........................................................................................................... xiii\nPreface .......................................................................................................................... xiv\nTable of Cases ............................................................................................................ xviii\nAudio/Video Materials ................................................................................................ xxvii\nProblems and Exercises.............................................................................................. xxxi\nChapter 1 ........................................................................................................................ 1\nThe Science ................................................................................................................. 1\nChapter 2 ...................................................................................................................... 25\nThe History of Regulation .......................................................................................... 25\nChapter 3 ...................................................................................................................... 46\nAdministrative Law..................................................................................................... 46\nChapter 4 ...................................................................................................................... 72\nRegulation of Wetlands and Waters of the United States .......................................... 72\nChapter 5 .................................................................................................................... 152\nAdditions and Discharges ........................................................................................ 152\nChapter 6 .................................................................................................................... 219\nSection 404 Permits................................................................................................. 219\nChapter 7 .................................................................................................................... 266\nMitigation ................................................................................................................. 266\nChapter 8 .................................................................................................................... 291\nEPA\xe2\x80\x99s Role in Permitting and EPA\xe2\x80\x99s Veto Authority................................................. 291\nChapter 9 .................................................................................................................... 312\nStates\xe2\x80\x99 Roles and State Programs ........................................................................... 312\nChapter 10 .................................................................................................................. 328\niv\n\n\x0cAdministrative Appeals, Judicial Review and Enforcement ..................................... 328\nChapter 11 .................................................................................................................. 377\nRegulatory Takings .................................................................................................. 377\n\nv\n\n\x0cTable of Contents\nSummary of Contents\nNotices\nAbout CALI eLangdell Press\nAcknowledgments\nAbout the Author\nPreface\nTable of Cases\nAudio/Video Materials\nProblems and Exercises\nChapter 1\nI.\n\nThe Science\n\nWetland Values and Functions\nA.\nB.\nC.\nD.\nE.\nF.\nG.\nH.\nI.\n\nProtection of Habitat/Protection of Species and Biodiversity\nFlood Control\nErosion Prevention and Shoreline Protection/Stabilization\nWater Quality Protection\nGroundwater Replenishment\nAtmospheric Maintenance\nWetland Products\nRecreation, Aesthetics, Education and Research\nProtection of Cultural Values\nvi\n\n\x0cII.\n\nDefinition and Types of Wetlands\nA.\nDefinitions\nB.\nTypes of Wetlands\n1.\nCowardin Classification\n2.\nMarshes, Swamps, Bogs and Fens\n3.\nHydrogeomorphic (HGM) Classification\n\nIII.\n\nStatus and Trends\n\nIV.\n\nWetland Delineation (section includes a Research Problem)\nChapter Quiz\n\nChapter 2\n\nThe History of Regulation\n\nI.\n\nEarly Development Laws\n\nII.\n\nA Slow Shift to Conservation\n\nIII.\n\nToward Comprehensive Federal Regulation (section includes a Research\nProblem)\n\nIV.\n\nConservation Programs and Agricultural Programs\n\nV.\n\nInternational Wetland Protection - U.S. Role (section includes a Research\nProblem)\n\nVI.\n\nThe Agencies that Regulate Wetlands (section includes a Research Problem and\nHypothetical)\nA.\nCorps of Engineers\nB.\nEnvironmental Protection Agency\nC.\nU.S. Fish and Wildlife Service\nD.\nNatural Resources Conservation Service\nE.\nU.S. Department of Justice, Environment and Natural Resources Division\nChapter Quiz\n\nChapter 3\n\nPrimer on Administrative Law\n\nI.\n\nNature of Administrative Agencies\n\nII.\n\nLimits on Agency Authority\nA.\nStatutory Limits\nB.\nConstitutional Limits\nC.\nLimits Imposed by Other Branches\nvii\n\n\x0cIII.\n\nProcedural Requirements for Agency Action\nA.\nRulemaking Procedures (includes a Research and Drafting Problem)\nB.\nAdjudication Procedures (includes a Hypothetical)\n\nIV.\n\nJudicial Review of Agency Action\nA.\nPrerequisites for a Judicial Challenge\nB.\nStandards for Judicial Review (includes a Hypothetical)\nChapter Quiz\n\nChapter 4\n\nRegulation of Wetlands and Waters of the\nUnited States\n\nI.\n\nActivities Regulated Under the Clean Water Act\nA.\nThe Rivers and Harbors Act\nB.\nThe Clean Water Act\nC.\nIdentifying and Delineating Wetlands (includes a Research Problem and\nHypothetical)\nSection Quiz\n\nII.\n\nWaters of the United States\nA.\nThe Corps\xe2\x80\x99 Initial Interpretation\nB.\nExpanded Jurisdiction, Adjacent Wetlands and Riverside-Bayview Homes\nC.\nIsolated Waters and Wetlands\nD.\nRepercussions of SWANCC - Isolated Waters, Non-Navigable Tributaries\nand Their Adjacent Wetlands\n1.\nRegulatory Response\n2.\nLegislative Response\n3.\nJudicial Response\nE.\nPost-Rapanos Developments\n1.\n2008 Guidance\n2.\nJudicial Interpretation of Rapanos\n3.\n2011 Guidance and 2014 Proposed Rulemaking (includes a\nHypothetical)\nChapter Quiz\n\nChapter 5\nI.\n\nAdditions and Discharges\n\nRegulated Activities (includes a Hypothetical)\nA.\nLandclearing\nB.\nDitching, Draining, and Dredging\nC.\nSidecasting\nviii\n\n\x0cD.\nDeep Ripping (includes a Hypothetical)\nE.\nCompeting Permit Programs - 404 v 402 - What is Fill Material?\nChapter Quiz\n\nChapter 6\n\nSection 404 Permits\n\nI.\n\nPermit Exemptions\n\nII.\n\nNationwide and Other General Permits\nA.\nIssuance of General Permits\nB.\nConditions of General Permits (includes a Research Problem)\nC.\nSimilar in Nature / Minimal Effects\nD.\nCombining Permits\nSection Quiz\n\nIII.\n\nIndividual Permits\nA.\nThe Process\n1.\nApplication, Public Notice and Comment\n2.\nCoordination with Other Agencies\n3.\nHearings and Decision-Making (includes a Research Problem)\nB.\nThe Standards for Permit Review\n1.\nPublic Interest Review\n2.\nSection 404(b)(1) Guidelines (includes a Hypothetical)\nChapter Quiz\n\nChapter 7\n\nMitigation\n\nI.\n\nTypes of Mitigation\n\nII.\n\nLegal Authority for Mitigation\n\nIII.\n\nMitigation Sequencing and Permit Conditions\n\nIV.\n\nAmount and Type of Mitigation Required\nA.\nNo Net Loss\nB.\nOn-Site and In-Kind\nC.\nRatios and Timing\n\nV.\n\nMitigation Banking\nA.\nBenefits of Mitigation Banking\nB.\nHistorical Development\nC.\nNuts and Bolts of Mitigation Banking (includes a Research Problem)\nix\n\n\x0cVI.\n\nIn Lieu Fee Programs\nA.\nBenefits and Concerns\nB.\nHistory and Regulation (includes a Hypothetical)\nChapter Quiz\n\nChapter 8\n\nEPA\xe2\x80\x99s Role and EPA Vetoes\n\nI.\n\nEPA\xe2\x80\x99s Role in the Section 404 Permitting Process\n\nII.\n\nEPA\xe2\x80\x99s Veto Authority\nA.\nAuthority and Procedures\n1.\nSection 404(q) and Elevation of Permit Disputes (includes a\nResearch Problem)\n2.\nSection 404(c) Procedures (includes a Research Problem)\nB.\nTiming of the Veto\nC.\nStandards for the Veto (includes a Drafting Exercise)\nChapter Quiz\n\nChapter 9\n\nStates\xe2\x80\x99 Roles and State Programs\n\nI.\n\nState Programs\nA.\nFederal/State Relationship (includes a Research Problem)\nB.\nA Survey of State Programs (includes a Research Problem)\n\nII.\n\nState Assumption of the Section 404 Program and State Programmatic General\nPermits\nA.\nAssumption of the 404 Permitting Program\nB.\nState Programmatic General Permits (includes a Research Problem)\n\nIII.\n\n401 Certification (includes a Research Problem)\n\nIV.\n\nCoastal Zone Management Act Certification (includes a Hypothetical)\nChapter Quiz\n\nChapter 10\nI.\n\nAdministrative Appeals, Enforcement &\nJudicial Review\n\nAdministrative Appeals and Judicial Review\nA.\nAdministrative Appeals of Corps\xe2\x80\x99 Decisions\n1.\nReviewable Actions\n2.\nReview Process (includes a Hypothetical and Research Problem)\nB.\nJudicial Review\nx\n\n\x0c1.\n2.\n3.\nII.\n\nReviewable Actions includes a Hypothetical)\nLimits on Judicial Review\nStandards of Review and Remedies\n\nEnforcement\nA.\nAdministrative Enforcement\n1.\nAdministrative Compliance Orders and Cease and Desist Letters\n2.\nAdministrative Penalty Orders\nB.\nJudicial Enforcement - Civil and Criminal\n1.\nCivil Enforcement (includes a Research Problem)\n2.\nCriminal Enforcement (includes 2 Hypotheticals)\nC.\nCitizen Suits\n1.\nSuits Allowed\n2.\nJurisdiction, Venue, and Relief Available\n3.\nLimits on Citizen Suits (includes a Hypothetical and Drafting\nExercise)\nChapter Quiz\n\nChapter 11\n\nRegulatory Takings\n\nI.\n\nBackground\n\nII.\n\nJurisdiction and Timing of Takings Claims (includes a Hypothetical)\n\nIII.\n\nThe Takings Analysis\n\nIV.\n\nApplying Lucas and Penn Central in the Wetlands Context (includes a\nHypothetical)\n\nV.\n\nMitigation, Permit Conditions and Exactions\n\nVI.\n\nOther Takings-Related Requirements (includes an Interviewing and Drafting\nExercise)\nChapter Quiz\n\nxi\n\n\x0cAcknowledgments\nI would like to thank my wife, Anne, and my children, Lyndsey, Keith and Caroline, for their\nsupport and for all of the time that we spent walking, hiking, running, climbing, paddling and\notherwise enjoying the outdoors over the years, which provided the inspiration for this\nproject. I would also like to thank Mercer Law School for providing me with a sabbatical and\nfinancial support for this project. I owe special thanks to the colleagues who agreed to be\ninterviewed for this project or hosted those interviews and to everyone who provided\nsuggestions and comments on drafts of the work. Finally, I would like to dedicate this\nproject to everyone at CALI and in academia that are working to create the next generation\nof e-books.\n\nxii\n\n\x0cAbout the Author\nStephen M. Johnson is the W.F.G. Professor of Law at Mercer University Law School in\nMacon, Georgia. He received his J.D. from Villanova University School of Law and an\nLL.M. in environmental law from the George Washington University Law School. Prior to\nteaching, he served as an attorney for the Bureau of Regulatory Counsel in the\nPennsylvania Department of Environmental Resources (now DEP) and as a trial attorney\nfor the U.S. Department of Justice, Environment and Natural Resources Division,\nEnvironmental Defense Section, where he worked on wetlands litigation and other\nenvironmental litigation.\nHe joined the Mercer faculty in 1993 and served as the Associate Dean for Academic\nAffairs from 2002-2012. He specializes in Environmental Law, but has also taught Torts,\nStatutory Law, Administrative Law, and Dispute Resolution. His scholarship focuses on\nwetlands, environmental justice, economics and the environment, technology and the law,\nand administrative law. In addition to authoring numerous articles on those topics, he has\nedited an American Bar Association book on Wetlands law and has authored a book on\neconomic approaches to environmental protection. He has also authored several CALI\nexercises on wetlands and environmental law and has served on the Board of Directors of\nCALI for more than a decade.\nWhile teaching at Mercer, he has been fortunate to teach or visit at Notre Dame Law\nSchool, the University of London and Strathclyde University. In 2004, he taught at the\nUniversity of Tokyo and at Waseda University (Tokyo) on a Fulbright grant.\n\nxiii\n\n\x0cPreface\nCourse Source: The Casebook Evolved\nYou\xe2\x80\x99ll notice that these materials are entitled, Wetlands Law: A Course Source. I chose\nthe term \xe2\x80\x9ccourse source,\xe2\x80\x9d as opposed to casebook or coursebook, to indicate that the\nformat of these materials is qualitatively different from traditional law school textbooks.\nI.\n\nTraditional casebooks and the evolution of casebooks\n\nThe law school casebooks that were created in the late 1800\'s to implement Christopher\nColumbus Langdell\xe2\x80\x99s case method of teaching consisted primarily of edited versions of\ncases and perhaps a few questions and comments. Casebooks have evolved slowly over\nthe years. Over time, it became popular to incorporate excerpts from law review articles,\nstatutes and regulations into the texts in addition to the cases, questions and comments.\nLittle changed for decades until problem-based books came along, incorporating a wealth\nof hypotheticals and problems that allowed students to apply the law that they were\nlearning from the cases, statutes, and regulations included in the book. Those books could\nmore precisely be referred to as \xe2\x80\x9ccoursebooks\xe2\x80\x9d than \xe2\x80\x9ccasebooks,\xe2\x80\x9d because they\nincorporated more than cases, questions and comments.\nAfter the MacCrate report in the 1990s and the 2007 Carnegie Foundation report, faculty\nand book publishers began publishing separate books focusing on skills development that\ncould be used to supplement traditional casebooks and coursebooks. In a few cases,\nbooks that were not marketed as \xe2\x80\x9cskills\xe2\x80\x9d books incorporated some skills exercises as well.\nPublishers also began marketing \xe2\x80\x9claw stories\xe2\x80\x9d books that provided a wealth of background\ninformation about a few cases to help bring those cases to life. Those were positive\ndevelopments in the evolution of law school teaching materials.\nII.\n\nThe \xe2\x80\x9cCourse Source\xe2\x80\x9d: The technological evolution of the casebook\n\nTechnology can help casebooks and coursebooks evolve into a new format. Several years\nago, publishers began marketing e-books for the law school market. So far, e-books for law\nschool have not taken full advantage of the medium. A few of the early books were simply\nelectronic versions of traditional casebooks or coursebooks. Others added a few hyperlinks\nto a traditional casebook or coursebook. For the most part, though, the changes in the\nformat of casebooks and coursebooks in the e-book era have been modest. Much more is\npossible. Technology can foster the transformation of the casebook and the coursebook\ninto the \xe2\x80\x9ccourse source\xe2\x80\x9d - a one-stop shop for all of a faculty member\xe2\x80\x99s teaching resource\nneeds.\nxiv\n\n\x0cThe Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of\nLaw, stressed the importance of three apprenticeships in the formation of a lawyer - the\ncognitive apprenticeship, the apprenticeship in the forms of expert practice shared by\npractitioners, and the apprenticeship of identity and purposes (professionalism). In short,\nthe report stressed that law schools should be training students in the knowledge, skills,\nand values necessary to the legal profession. A \xe2\x80\x9ccourse source,\xe2\x80\x9d the next generation of law\nteaching materials, can utilize technology to provide resources for training students in all\nthree apprenticeships. A \xe2\x80\x9ccourse source\xe2\x80\x9d recognizes that the three apprenticeships are\ninterconnected and that a faculty member needs the tools to train students in all three\napprenticeships, rather than assuming that a separate course in legal professionalism or\nresearch and writing will develop the student\xe2\x80\x99s skills and values.\nIn addition, legal educators have increasingly recognized the importance of formative and\nsummative assessment, and the American Bar Association\xe2\x80\x99s Standards for Approval of Law\nSchools require schools to use both formative and summative assessment in their\ncurriculum \xe2\x80\x9cto measure and improve student learning and to provide meaningful feedback\nto students.\xe2\x80\x9d A \xe2\x80\x9ccourse source\xe2\x80\x9d provides a variety of tools for formative and summative\nassessment.\nA \xe2\x80\x9ccourse source\xe2\x80\x9d also takes advantage of the wealth of materials available online and in a\nvariety of media formats to incorporate links to content that puts the cases, materials and\ndisputes in the book in context, to provide a fuller and richer understanding of the materials.\nFurther, a \xe2\x80\x9ccourse source\xe2\x80\x9d is portable and customizable, since it is distributed through a\nCreative Commons license as open source materials. Thus, faculty can pick and choose\nthe portions of the materials that they find most useful and relevant for their teaching and\ndistribute those materials to students for free.\nA \xe2\x80\x9ccourse source\xe2\x80\x9d is available in a variety of formats as an e-book, but most of the content\nand links in the book will also be re-purposed as a web-based library of teaching resources\nrelated to the topic of the book.\nIII.\n\nWetlands Law: A Course Source\n\nThis \xe2\x80\x9ccourse source\xe2\x80\x9d on wetlands law implements the vision outlined in the preceding\nsection. The Wetlands Law Course Source includes resources to train students in all three\napprenticeships. To address the knowledge apprenticeship, the \xe2\x80\x9ccourse source\xe2\x80\x9d includes\nall of the traditional elements of a casebook or coursebook (cases, commentary, notes and\nquestions) and includes several hypotheticals and problem exercises that focus on\nreinforcing wetlands law. In addition, as one of the many forms of summative and formative\nassessment included in the book, every chapter includes one or more CALI exercise as a\n\nxv\n\n\x0c\xe2\x80\x9cquiz\xe2\x80\x9d to reinforce the material covered in the chapter. The course source also includes\nlinks to other CALI exercises on topics related to the material covered in the book.\nTo address the skills apprenticeship, the \xe2\x80\x9ccourse source\xe2\x80\x9d includes sixteen separate legal\nresearch exercises, several drafting exercises (including exercises that focus on drafting a\nFOIA request, drafting comments on a proposed regulation, and drafting a citizen suit\ncomplaint and 60 day notice letter), a negotiation exercise, and an interviewing and\ncounseling exercise.\nTo address the values apprenticeship, the \xe2\x80\x9ccourse source\xe2\x80\x9d includes several\nprofessionalism scenarios, with questions related to the scenarios.\nAs noted above, the \xe2\x80\x9ccourse source\xe2\x80\x9d also incorporates a wealth of audio/video materials\nand external links to bring the cases, disputes and materials in the book to life. For\ninstance, links are provided to the audio for the oral arguments in most of the principal\ncases excerpted in the book. A Google map is included in the book, identifying the location\nof the properties involved in all of the principal cases excerpted in the book, so that\nstudents can see the wetlands that were preserved in the cases or the development that\nreplaced the wetlands. For most of the principal cases that are excerpted in the book, there\nare links to decision documents, administrative orders, property maps, pictures, local media\ncoverage or other background materials. While the principal cases have been edited, the\nbook includes links to the full unedited versions of all of the principal cases in the book.\nThroughout each chapter, there are several \xe2\x80\x9cResource\xe2\x80\x9d sections that identify reports,\ndatabases, audio or video materials, government documents, and other materials that are\nrelevant to the topics covered in the chapter.\nThe book also links to (1) a series of videos prepared by the Army Corps of Engineers that\ndescribe the wetland delineation process, wetland mitigation, the wetland permitting\nprocess and many other wetland-related issues; (2) videos demonstrating mountaintop\nremoval mining; and (3) videos outlining the values and functions of wetlands. In addition,\nthe book contains links to interviews that I conducted regarding a variety of different\nwetland issues with attorneys who work with local communities and with the Department of\nJustice, the National Wildlife Federation, and the Environmental Council of the States.\nThose interviews are posted on YouTube.\nSince the \xe2\x80\x9ccourse source\xe2\x80\x9d is distributed under a Creative Commons license, it was also\npossible to include several pictures of wetlands and activities that take place in wetlands in\nthe book, as the pictures are available through the Wikimedia Commons for materials that\nare distributed under the Creative Commons license. Most of the cases that are cited in the\nbook, other than cases that are only cited in the excerpts of the principal cases, are linked\nto full, unedited opinions that are available online for free through Justia.com. Further,\nalmost all of the statutes, regulations, reports, databases, and government documents in\nthe book are hyperlinked to external sources. The 400 page book includes almost 1000\nxvi\n\n\x0clinks. I hope you will find this \xe2\x80\x9ccourse source\xe2\x80\x9d to be a useful and engaging teaching and\nlearning tool.\nThe links in the book have also been re-purposed as a web-based library of wetlands\nteaching resources, which is accessible at:\nhttp://www.envirolawteachers.com/wetlands-law-a-course-source.html\n\nxvii\n\n\x0cTable of Cases\nAll of the opinion links below, and throughout the book, are links to Justia.com, unless\nnoted below. The principal cases that are excerpted in the book are indicated in bold\ntext.\nAgins v. City of Tiburon, 447 U.S. 255 (1980)\n\n11\n\nAJA Associates v. U.S. Army Corps of Engineers, 817 F.2d 1070 (3d Cir.\n1987)\n\n6\n\nA.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)\n\n3\n\nAlaska Center for the Environment v. West, 157 F.3d 680 (9th Cir. 1998)\n\n6\n\nAlliance to Save Mattaponi v. United States Army Corps of Engineers,\n515 F. Supp. 2d 1 (D.D.C. 2007) (Link to Casetext)\n\n8\n\nAtchafalaya Basinkeeper, et al. v. Chustz, 682 F.3d 356 (5th Cir. 2012)\n\n10\n\nAuer v. Robins, 519 U.S. 452 (1997)\n\n3,4\n\nAvoyelles Sportsmen\xe2\x80\x99s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.\n1983)\n\n5,10\n\nBaccarat Fremont v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th\nCir. 2005)\n\n4\n\nBaltimore Gas & Electric Co. v. Natural Resources Defense Council, 462\nU.S. 87 (1983)\n\n3\n\nBarnhart v. Walton, 535 U.S. 212 (2002)\n\n3\n\nBelle Corp., L.L.C. v. U.S. Army Corps of Engineers, No. 13-30262 (5th\nCir. July 30, 2014) (Link to the court\xe2\x80\x99s website)\n\n10\n\nBennett v. Spear, 520 U.S. 154,178 (1997) (Link to Cornell\xe2\x80\x99s LII)\n\n10\n\nBersani v. Robichaud, 850 F.2d 36 (2d Cir. 1988)\n\n6,8\n\nBorden Ranch Partnership v. United States Army Corps of\nEngineers, 261 F.3d 810 (9th Cir. 2001)\n\n5\n\nBowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)\n\n4\n\nBowles v. United States, 31 Fed. Cl. 37 (1994)\n\n11\n\nxviii\n\n\x0cBuckhannon Board and Care Home, Inc. v. West Virginia Department of\nHealth and Human Resources, 532 U.S. 598 (2001)\n\n10\n\nButtrey v. United States, 690 F.2d 1170 (5th Cir. 1982)\n\n6\n\nChevron v. NRDC, 467 U.S. 837 (1984)\n\n3\n\nChicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897)\n\n11\n\nChristensen v. Harris County, 529 U.S. 576 (2000)\n\n3\n\nCitizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)\n\n3,10\n\nClarke v. Securities Industry Association, 479 U.S. 388 (1987)\n\n10\n\nCoeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557\nU.S. 261 (2009)\n\n5\n\nCommunity Assn. For Restoration of Environment v. Henry Bosma Dairy,\n305 F.3d 943 (9th Cir. 2002) (Link to Law.Resource.Org)\n\n4\n\nCrutchfield v. County of Hanover, Virginia, 325 F.3d 211 (4th Cir. 2003)\n\n6\n\nDeltona Corp. v. United States, 657 F.2d 1184 (Cl. Ct. 1981), cert.\ndenied, 455 U.S. 1017 (1982)\n\n11\n\nDepartment of Energy v. Ohio, 503 U.S. 607 (1992) (Link to Cornell\xe2\x80\x99s LII)\n\n10\n\nDolan v. City of Tigard, 512 U.S. 374 (1994)\n\n11\n\nEx Parte Young, 209 U.S. 123 (1908)\n\n10\n\nFairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d\n586 (9th Cir. 2008)\n\n10\n\nFirst English Evangelical Lutheran Church of Glendale v. County of Los\nAngeles, 482 U.S. 304 (1987)\n\n11\n\nFlorida Rock Industries v. United States, 45 Fed. Cl. 21 (1999)\n\n11\n\nFlorida Rock Industries v. United States, 18 F.3d 1560 (Fed. Cir. 1994),\ncert denied 513 U.S. 1109 (1995)\n\n11\n\nFlorida Rock Industries v. United States, 21 Cl. Ct. 161 (1990), vacated\non other grounds, 18 F.3d 1560 (Fed. Cir. 1994), cert denied 513 U.S.\n1109 (1995)\n\n11\n\nForest Guardians v. United States Forest Service, 641 F.3d 423 (10th Cir.\n2011) (From the court\xe2\x80\x99s website)\n\n10\n\nxix\n\n\x0cFPC v. Hope Natural Gas Co., 320 U.S. 591 (1944)\nFriends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986)\n\n3\n6,10\n\nFriends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S.\n167 (2000) (Link to Cornell\xe2\x80\x99s LII)\n\n10\n\nFriends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d\n989 (9th Cir. 1993)\n\n6\n\nFund for Animals v. Rice, 85 F.3d 535, 541-542 (11th Cir. 1996)\n\n6\n\nGolden Gate Audubon Society v. U.S. Army Corps of Engineers, 717 F.\nSupp. 1417 (N.D. Cal. 1988)\n\n10\n\nGreater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004)\n\n6\n\nGrutter v. Bollinger, 539 U.S. 306 (2003)\n\n4\n\nGwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49\n(1987)\n\n10\n\nHadacheck v. Sebastian, 239 U.S. 394 (1915)\n\n11\n\nHallstrom v. Tillamook County, 493 U.S. 20 (1989)\n\n10\n\nHawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir.\n2015)\n\n10\n\nHeadwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001)\n\n4\n\nHeckler v. Chaney, 470 U.S. 821 (1985)\n\n10\n\nHobbs v. United States, 947 F.2d 941 (4th Cir. 1991), cert. denied 504\nU.S. 940 (1992)\n\n4\n\nHoffman Group, Inc. V. EPA, 902 F.2d 567 (7th Cir. 1990)\n\n4\n\nHoffman Homes, Inc. v. Administrator, United States EPA 975 F.2d 1554\n(7th Cir. 1992)\n\n4\n\nHoffman Homes, Inc. v. Administrator, United States EPA, 961 F.2d 1310\n(7th Cir. 1992)\n\n4\n\nIn re Environmental Protection Agency, 808 F.3d 804 (6th Cir. 2015)\n\n4\n\nIn re Needham, 354 F.3d 340 (5th Cir. 2003)\n\n4\n\nJames City County v. Environmental Protection Agency, 12 F.3d 1330 (4th\n\n8\n\nxx\n\n\x0cCir. 1993)\nJames City County v. U.S. Environmental Protection Agency, 955 F.2d\n254 (4th Cir. 1992)\n\n6,8\n\nJentgen v. United States, 657 F.2d 1210 (Cl. Ct. 1981), cert. denied, 455\nU.S. 1017 (1982)\n\n11\n\nJust v. Marinette County, 201 N.W.2d. 761 (Wis. 1972)\n\n11\n\nJ.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)\n\n3\n\nKelly v. United States, 203 F.3d 519 (7th Cir. 2000)\n\n10\n\nKentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir.\n2003)\n\n5\n\nKentucky Riverkeeper, Inc. v. Rowelette, 714 F.3d 402 (6th Cir. 2013)\n(From the court\xe2\x80\x99s website)\n\n6\n\nKoontz v. Saint John\xe2\x80\x99s River Water Management District, 133 S. Ct.\n2586 (2013)\n\n11\n\nLeovy v. United States, 177 U.S. 621 (1900)\n\n2\n\nLeslie Salt v. United States, 896 F.2d 354 (9th Cir. 1990), cert. denied,\n486 U.S. 1126 (1991)\n\n4\n\nLexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct.\n1377, 1387 (2014)\n\n10\n\nLingle v. Chevron, U.S.A., 544 U.S. 528 (2005) (Link to Cornell\xe2\x80\x99s LII)\n\n11\n\nLost Tree Village Corporation v. United States, 43 E.L.R. 20012 (Fed.\nCir. 2013) (From the court\xe2\x80\x99s website)\n\n11\n\nLost Tree Village Corp. v. United States, No. 08-117L (Fed. Cl.\n03/14/2014)\n\n11\n\nLouisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044 (5th Cir.\n1985)\n\n6\n\nLoveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994)\n\n11\n\nLoveladies Harbor v. United States, 21 Cl. Ct. 153 (1990)\n\n11\n\nLucas v. South Carolina Coastal Council,505 U.S. 1003 (1992)\n\n11\n\nLucas v. South Carolina Coastal Council, 424 S.E.2d 424, 23 E.L.R.\n\n11\n\nxxi\n\n\x0c20297 (S.C. 1992) (From Duke Law School)\nMarks v. United States, 430 U.S. 188 (1977)\n\n4\n\nMcDonald et al v. County of Yolo, 477 U.S. 340 (1986)\n\n11\n\nMcQueen v. South Carolina Coastal Council, 580 S.E.2d 116 (S.C. 2003)\n\n11\n\nMiddlesex County Sewerage Authority v. National Sea Clammers\nAssociation, 453 U.S.1 (1981)\n\n10\n\nMingo Logan Coal Company v. U.S. Environmental Protection\nAgency, 714 F.3d 608 (D.C. Cir. 2013) (From the court\xe2\x80\x99s website)\n\n8\n\nMotor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile\nIns. Co., 463 U.S. 29 (1983)\n\n3\n\nMunicipality of Anchorage v. United States, 21 ELR 20119 (D. Alaska\n1990), aff\xe2\x80\x99d 980 F.2d 1320 (9th Cir. 1992)\n\n7\n\nMurr v. Wisconsin, 382 U.S. ___ (2017)\n\n11\n\nMurray Energy Corp. v. United States Department of Defense (In re:\nU.S.D.O.D.), 817 F.3d 261 (6th Cir. 2016)\n\n4\n\nNational Broadcasting Co. v. United States, 319 U.S. 190 (1943)\n\n3\n\nNational Cable & Telecommunications Association v. Brand X Internet\nServices, 545 U.S. 967 (2005)\n\n4\n\nNational Mining Association v. McCarthy, No. 12-5310 (D.C. Cir. July 11,\n2014).\n\n5\n\nNational Mining Association v. U.S. Army Corps of Engineers, 145\nF.3d 1399 (D.C. Cir. 1998)\n\n5\n\nNational Wildlife Federation v. Whistler, 27 F.3d 1341 (8th Cir. 1994) (Link\nto OpenJurist)\n\n6\n\nNatural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685\n(D.D.C. 1975)\n\n4\n\nNatural Resources Defense Council v. California Department of\nTransportation, 96 F.3d 420 (9th Cir. 1996)\n\n10\n\nNollan v. California Coastal Commission, 483 U.S. 825 (1987)\n\n11\n\nNorth Dakota v. U.S. Environmental Protection Agency, 127 F. Supp. 3d\n\n4\n\nxxii\n\n\x0c1047 (D. N.D. 2015)\nNorthern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th\nCir. 2007)\n\n4\n\nOffice of Personnel Management v. Richmond, 496 U.S. 414 (1990)\n\n4\n\nOhio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d\n1777 (4th Cir. 2009) (From EPA\xe2\x80\x99s website)\n\n5\n\nOhio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir.\n2005)\n\n6\n\nOrleans Audubon Society v. Lee, 742 F.2d 901 (5th Cir. 1984)\n\n10\n\nPalazzolo v. Rhode Island, 533 U.S. 606, 620 (2001)\n\n11\n\nPenn Central Transportation Company v. New York City, 438 U.S. 104\n(1978)\n\n11\n\nPennsylvania Coal v. Mahon, 260 U.S. 393 (1922)\n\n11\n\nPermit Elevation, Plantation Landing Resort (From EPA\xe2\x80\x99s website)\n(Administrative decision)\n\n6\n\nPrecon Development Corp. v. Corps, 633 F.3d 278 (4th Cir. 2011)\n\n4\n\nPreserve Endangered Areas of Cobb\xe2\x80\x99s History, Inc. v. U.S. Army Corps of\nEngineers, 87 F.3d 1242 (11th Cr. 1996)\n\n8,10\n\nPublic Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d\n1179 (3d Cir. 1995)\n\n10\n\nPUD No. 1 of Jefferson County v. Washington Department of\nEnvironmental Quality, 511 U.S. 700 (1994)\n\n9\n\nRapanos v. United States, 547 U.S. 715 (2006) (Link to Mercer Law)\n\n4\n\nResource Investments, Inc. v. United States, 85 Fed. Cl. 447 (2009) (Link\nto Findlaw)\n\n11\n\nSackett v. EPA, 132 S. Ct. 1367 (2012)\n\n4,10\n\nSasser v. Administrator, 990 F.2d 127 (4th Cir. 1993)\n\n10\n\nSave Our Community v. EPA, 971 F.2d 1155 (5th Cir. 1992) (Link to the\ncourt\xe2\x80\x99s website)\n\n5\n\nSave Ourselves v. U.S. Army Corps of Engineers, 958 F.2d 659 (5th Cir.\n\n10\n\nxxiii\n\n\x0c1992)\nSave Our Wetlands v. Sands, 711 F.2d 634 (5th Cir. 1983)\n\n5\n\nSecurities and Exchange Commission v. Chenery, 332 U.S. 194 (1947)\n\n3\n\nSecurities and Exchange Commission v. Chenery Corp., 318 U.S. 80\n(1943)\n\n3,10\n\nSeminole Tribe v. Florida, 517 U.S. 44 (1996)\n\n10\n\nSierra Club v. U.S. Environmental Protection Agency, 268 F.3d 898 (9th\nCir. 2001)\n\n10\n\nSierra Club v. U.S. Army Corps of Engineers, 508 F.3d 1332 (11th Cir.\n2007) (Link to Findlaw)\n\n6\n\nShoreline Associates v. Marsh, 555 F. Supp. 169 (D. Md. 1983), aff\xe2\x80\x99d 725\nF.2d 677 (4th Cir. 1984) (Link to Google Scholar)\n\n6\n\nSkidmore v. Swift, 323 U.S. 134 (1944)\n\n3\n\nSolid Waste Agency of Northern Cook County, v. United States Army\nCorps of Engineers, et al., 531 U.S. 159 (2001) (Link to Mercer Law)\n\n4\n\nSouthern Pines Associates v. United States, 912 F.2d 713 (4th Cir. 1990)\n\n4\n\nStoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200\n(4th Cir. 1986)\n\n10\n\nSylvester v. U.S. Army Corps of Engineers, 871 F.2d 817 (9th Cir. 1989),\nrevised at 884 F.2d 394 (9th Cir. 1989)\n\n6\n\nTabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993)\n\n11\n\nTahoe Sierra Preservation Council v. Tahoe Regional Planning Agency,\n535 U.S. 302 (2002) (Link to Legal Information Institute)\n\n11\n\nTexas Mun. Power Agency v. EPA, 836 F.2d 1482 (5th Cir. 1988)\n\n4\n\nTull v. United States, 481 U.S. 412 (1987)\n\n10\n\nThe Daniel Ball, 77 U.S. 557 (1870)\n\n4\n\nUnited States v. Bailey, 571 F.3d 791 (8th Cir. 2009) (Link to Google\nScholar)\n\n4\n\nUnited States v. Banks, 115 F.3d 916 (11th Cir. 1997)\n\n10\n\nxxiv\n\n\x0cUnited States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) (Link to Google\nScholar)\n\n4\n\nUnited States v. Deaton, 209 F.3d 331 (4th Cir. 2000)\n\n5\n\nUnited States v. Deaton, 332 F.3d 698 (4th Cir. 2003)\n\n5\n\nUnited States v. Donovan, 661 F.3d 174 (3d Cir. 2011)\n\n4\n\nUnited States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006)\n\n4\n\nUnited States v. Hopkins, 53 F.3d 533 (2d Cir. 1995)\n\n10\n\nUnited States v. Huebner, 752 F.2d 1235 (7th Cir. 1985)\n\n6\n\nUnited States v. Johnson, 467 F.3d 56 (1st Cir. 2006) (Link to Google\nScholar)\n\n4\n\nUnited States v. Lucas, 516 F.3d 316 (5th Cir. 2008) (Link to the court\xe2\x80\x99s\nwebsite)\n\n4\n\nUnited States v. Mead Corp., 533 U.S. 218 (2001)\nUnited States v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir.\n1977)\n\n3,5\n3\n\nUnited States v. Riverside Bayview Homes, 474 U.S. 121 (1985)\n\n1,4,10,11\n\nUnited States v. Robison, 505 F.3d 1208 (11th Cir. 2007) (Link to the\ncourt\xe2\x80\x99s website)\n\n4\n\nUnited States v. Rueth Development Co., 335 F.3d 598 (7th Cir. 2003)\n\n4\n\nUnited States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994)\n\n10\n\nxxv\n\n\x0cUnited States v. Wilson, 133 F.3d 251 (4th Cir. 1997)\n\n4,5,10\n\nU. S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016)\n\n4\n\nVieux Carre Property Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991)\n\n10\n\nWhitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001)\n\n3\n\nWilliamson County Regional Planning v. Hamilton Bank, 473 U.S. 172\n(1985)\n\n11\n\nYakus v. United States, 321 U.S. 414 (1944)\n\n3\n\nZabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied 401 U.S. 910\n(1971)\n\n2\n\nxxvi\n\n\x0cAudio/Video Materials\nInterviews:\n\nAlexandra Dapolito Dunn, Director and General Counsel, Environmental\nCouncil of the States\nChapter 7:\n\ndiscusses State wetland mitigation programs, in\ncontrast to the federal program\n\nChapter 9:\n\ndiscusses regional and other variations in the attitudes\nthat States take toward wetlands regulation;\ndiscusses whether many States operate their own State\nwetland permitting programs and generally describes\nthe State programs;\ndiscusses the most effective tools that States are using\nto protect wetlands;\ndiscusses the greatest impediments to wetland\nprotection in the States;\ndiscusses the Association of Wetlands Managers and\nthe role they play in wetland protection; impediments to\nassumption by States of the 404 permitting program;\nand\ndiscusses the way in which States use the 401\ncertification process to protect wetlands.\n\nJan Goldman Carter, Senior Manager and Counsel, National Wildlife\nFederation Wetlands and Water Resources Program:\nChapter 1:\n\ndiscusses the value of a scientific background for a\ncareer in environmental law;\ndiscusses the judicial and legislative understanding of,\nand receptivity to, scientific issues involving wetlands.\n\nChapter 4:\n\ndiscusses the importance of the Clean Water Act\xe2\x80\x99s\n\xe2\x80\x9cwaters of the United States\xe2\x80\x9d language as a foundation\nxxvii\n\n\x0cfor wetlands protection.\nChapter 5:\n\ndiscusses the Tulloch litigation (in which she was\ninvolved) and the aftermath of the litigation.\n\nChapter 9:\n\ndiscusses the variety of State wetland protection\nprograms and the political pressure on State programs.\n\nChapter 10: discusses the mission and structure of the National\nWildlife Federation, and work that the organization does\nto protect wetlands; and\ndiscusses the role that litigation plays in protecting\nwetlands, and the manner in which the National Wildlife\nFederation chooses litigation priorities.\nPatrick McGinley, Charles H. Haden Professor of Law, West Virginia\nUniversity College of Law\nChapter 5:\n\ndiscusses the history of mountaintop removal mining;\ndiscusses valley fills and their environmental impacts;\ndiscusses other impacts of mountaintop mining;\ndiscusses benefits to communities from mountaintop\nmining;\ndiscusses the environmental justice impacts of\nmountaintop removal mining; and\ndiscusses representing communities affected by\nmountaintop mining\n\nStephen Samuels, U.S. Department of Justice, Environment and Natural\nResources Division, Environmental Defense Section\nChapter 1:\n\ndiscusses the challenge of influencing courts and\nlegislatures with scientific information on the values and\nfunctions of wetlands.\n\nChapter 2:\n\ndiscusses the division of responsibility for wetlands\nlitigation within the Environment and Natural Resources\nxxviii\n\n\x0cDivision;\ndiscusses how the Environmental Defense Section\nrepresents multiple federal agencies that may take\nconflicting positions on issues in litigation; and\ndiscusses the role that DOJ\'s Environment and Natural\nResources Division plays in developing regulations and\nlegislation, focusing specifically on legislative and\nregulatory initiatives to clarify the scope of the "waters of\nthe U.S."\nChapter 4:\n\ndiscusses the Supreme Court cases interpreting the\nbreadth of the Clean Water Act jurisdiction over "waters\nof the United States", the interpretive difficulties the\ndecisions have created, and the legislative and\nregulatory efforts to clarify the breadth of jurisdiction.\n\nChapter 10: explains how federal wetland enforcement priorities are\nset.\nMap:\n\nGoogle Map identifying the location of the properties at issue in all of the\ncases excerpted in the course source - Chapters 3, 4, 5, 6, 8, 10, and 11.\n\nOral\nArguments: Borden Ranch Partnership v. United States Army Corps of Engineers (link to\nthe Oyez Project) - Chapter 5\nChevron v. NRDC (link to the Oyez Project) - Chapter 3\nCoeur Alaska v. S.E. Alaska Conservation Council (link to the Oyez Project) Chapter 5\nKoontz v. St. John\xe2\x80\x99s River Water Management (link to the Oyez Project) Chapter 11\nLost Tree Village Corp. v. United States (link to the court\xe2\x80\x99s website) - Chapter\n11\nLucas v. South Carolina Coastal Council (link to the Oyez Project) - Chapter\n11\n\nxxix\n\n\x0cMingo Logan Coal Company v. U.S. Environmental Protection Agency Oral\nArgument (link to the court\xe2\x80\x99s website) - Chapter 8\nMurr v. Wisconsin (link to the Oyez Project) \xe2\x80\x93 Chapter 11\nRapanos v. United States (link to the Oyez Project) - Chapter 4\nSackett v. EPA (link to the Oyez Project) - Chapter 10\nSolid Waste Agency of Northern Cook County v. Corps (link to the Oyez\nProject) - Chapter 4\nU.S. v. Riverside Bayview Homes (link to the Oyez Project) - Chapter 4\nVideos:\n\nCorps of Engineers videos on Delineating Wetlands (Chapter 1); 404\npermitting (Chapter 6); 404(b)(1) Guidelines (Chapter 6); Alternatives\nAnalysis (Chapter 6); Mitigation (Chapter 8); Administrative Appeals (Chapter\n10)\nDeep Ripping Videos on Facebook and YouTube - Chapter 5\nEPA Video - Wetlands and Wonders - Reconnecting Children with Nearby\nNature - Chapter 1\nLiquidity: The Value of Wetlands - Chapter 1\nMountaintop removal mining videos from Appalachian Voices, Discovery, and\nSmithsonian - Chapter 5\nUSDA Video regarding the history of the Conservation Reserve Program Chapter 2\nWetlands Values and Functions Videos from Conservation Media,\nGreenTreks Network (Pennsylvania\xe2\x80\x99s wetlands), Delaware DNREC, and\nOklahoma Gardening - Chapter 1\n\nxxx\n\n\x0cProblems and Exercises\nChapter 1\nResearch Problem:\n\nFinding agency reports online; Finding agency guidance\ndocuments online\n\nCALI Chapter Quiz\n\nChapter 2\nResearch Problem:\nResearch Problem:\nProfessionalism Hypothetical:\nCALI Chapter Quiz\n\nFinding international materials online\nFinding agency contacts - offices and phone numbers\nModel Rule 1.1\n\nChapter 3\nResearch Problem:\nDrafting Exercise:\nHypothetical:\nHypothetical:\n\nFinding rules using Regulations.gov; Finding information\nin the rulemaking dockets on Regulations.gov\nDrafting a comment on a proposed rulemaking\nRulemaking v. adjudication; Formal v. informal\nprocedures\nStandards of review for agency decision-making\n(Chevron, Skidmore, etc.)\n\nCALI Chapter Quiz\n\nChapter 4\nResearch Problem:\nProfessionalism Hypothetical:\nHypothetical:\nCALI Section Quiz\nCALI Chapter Quiz\n\nFinding jurisdictional determinations online\nModel Rule 4.2\nWaters of the United States\n\nChapter 5\nProfessionalism Hypothetical:\nHypothetical:\nCALI Chapter Quiz\n\nModel Rule 1.6\nRegulated Activities\n\nxxxi\n\n\x0cChapter 6\nResearch Problem:\nResearch Problem:\nHypothetical:\nCALI Section Quiz\nCALI Chapter Quiz\n\nFinding and interpreting nationwide and regional\ngeneral permits\nFinding individual permits and pending individual\npermits\nAlternatives Analysis\n\nChapter 7\nResearch Problem:\nProfessionalism Hypothetical:\nCALI Chapter Quiz\n\nFinding mitigation banking data in RIBITS\nModel Rules 1.16 and 2.1\n\nChapter 8\nResearch Problem:\nResearch Problem:\nDrafting Exercise:\nCALI Chapter Quiz\n\nFinding and interpreting EPA elevation decisions\nFinding and interpreting EPA veto documents\nDrafting a FOIA request\n\nChapter 9\nResearch Problem:\nResearch Problem:\nResearch Problem:\nResearch Problem:\n\nFinding and interpreting state laws limiting authority\nover wetlands\nFinding and interpreting state laws regarding\njurisdiction over wetlands\nFinding and interpreting state programmatic general\npermits\nFinding and interpreting state laws regarding water\nquality standards\n\nCALI Chapter Quiz\n\nChapter 10\nHypothetical:\nResearch Problem:\nHypothetical:\nResearch Problem:\n\nAdministrative Appeals\nFinding administrative appeals\nJudicial Review of Administrative Actions\nFinding and interpreting consent decrees\nxxxii\n\n\x0cHypothetical:\nHypothetical:\nHypothetical:\nDrafting Exercise:\n\nCriminal Enforcement\nChoice of Enforcement Tool\nCitizen Suits\nDrafting a Complaint and 60 day notice in a Citizen\nSuit\n\nCALI Chapter Quiz\n\nChapter 11\nHypothetical:\nTiming of Takings Claims\nHypothetical:\nTakings Analysis\nInterviewing & Drafting Exercise: Draft questions to evaluate the strength of a client\xe2\x80\x99s\ntakings claim\nCALI Chapter Quiz\n\nxxxiii\n\n\x0cChapter 1\nThe Science\nI.\n\nWetland Values and Functions\n\nThis is a book about wetlands, and the laws that protect wetlands. It seems only natural,\ntherefore, to begin the book by looking at the reasons that there are laws to protect\nwetlands. This first chapter begins with a focus on the values and functions of wetlands.\nIn the 19th century, wetlands were considered \xe2\x80\x9ca menace, the cause of malaria, and a\nhindrance to land development.\xe2\x80\x9d See U.S. Congress, Office of Technology Assessment,\nOTA-O-206, Wetlands: Their Use and Regulation 37 (Mar. 1984). Attitudes towards\nwetlands have changed greatly since then as scientists and the public have discovered the\nsocietal benefits and important ecological functions of wetlands. The United Nations\nMillennium Ecosystem Assessment determined that the ecosystem services provided\nglobally by wetlands in 1997 were worth 15 trillion dollars. See Ramsar Convention on\nWetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services - An Introduction.\nConsequently, wetlands frequently provide far greater economic benefits as part of healthy\nfunctioning ecosystems than they would provide after being converted to other uses. Id.\nThe \xe2\x80\x9cecosystem services\xe2\x80\x9d and other values and functions provided by wetlands include:\n\n\xef\x82\xb7\n\nProvision of Habitat / Protection of Species and Biodiversity\n\n\xef\x82\xb7\n\nFlood Control\n\n\xef\x82\xb7\n\nErosion Prevention and Shoreline Stabilization / Protection\n\n\xef\x82\xb7\n\nWater Quality Protection (removal of sediments, nutrients and toxics)\n\n\xef\x82\xb7\n\nGroundwater Replenishment\n\n\xef\x82\xb7\n\nClimate Regulation\n\n\xef\x82\xb7\n\nWetland Products (timber, food products, etc.)\n\n\xef\x82\xb7\n\nRecreation, Aesthetics, and Education\n\n\xef\x82\xb7\n\nProtection of Cultural Values\n1\n\n\x0cNot every wetland provides all of the functions outlined above. The services that each\nwetland provides will vary based on the type of wetland, its size and location. See Ramsar\nConvention on Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services An Introduction. However, the services that each wetland provides generally benefit much\nbroader segments of the public than would be benefitted by the conversion of the wetlands\nto unsustainable uses. Id. It is not always easy to get that message across, though, as, in\nthe past, there has frequently been a lack of concrete economic data available to\ndemonstrate the monetary value of preserving wetlands in their natural state. Id. In\naddition, some of the values provided by wetlands, such as recreation, aesthetics,\neducation, research and protection of cultural values, are difficult to quantify in dollar\nfigures. Nevertheless, methods for assessing the value of ecosystem services are maturing\nand a recent study demonstrated that coastal wetlands in the United States provide storm\nprotection worth over 23 billion dollars per year, so that the conversion of one hectare\n(about 2 \xc2\xbd acres) of coastal wetlands would eliminate about 33,000 dollars worth of storm\nprotection per year. Id; see also Institute for European Environmental Policy, The\nEconomics of Ecosystems and Biodiversity for Water and Wetlands 19-33 (2013).\nMany of the values and functions provided by wetlands, such as water quality protection,\nflood control, shoreline stabilization, atmospheric maintenance, and groundwater\nreplenishment, are tied to the integral role of wetlands within the hydrologic cycle. Wetlands\nreceive, store and release water physically through ground water and surface water, and\nbiologically through transpiration by vegetation. See U.S. Environmental Protection Agency,\nWatershed Academy Web, Distance Learning Modules on Watershed Management,\nWetland Functions and Values 5 [hereinafter \xe2\x80\x9cWatershed Academy Web\xe2\x80\x9d]; see also\nInstitute for European Environmental Policy, The Economics of Ecosystems and\nBiodiversity for Water and Wetlands 5-6 (2013). Wetlands are frequently referred to as\n\xe2\x80\x9cnature\xe2\x80\x99s kidneys.\xe2\x80\x9d See Association of State Wetlands Managers, The Compleat Wetlander:\nWetlands - Nature\xe2\x80\x99s Kidneys and Other Specialized Services (Feb. 23, 2010). The United\nStates Supreme Court recognized the central role that wetlands play in the hydrologic cycle\nand discussed the importance of protecting wetlands in order to protect ecosystems in\nUnited States v. Riverside Bayview Homes, 474 U.S. 121, 132-133 (1985). The diverse\nvalues and functions that wetlands provide are discussed in more detail in the following\nsections.\n\nA.\n\nProvision of Habitat / Protection of Species\nand Biodiversity\n\nWetlands are sometimes referred to as \xe2\x80\x9cnurseries of life\xe2\x80\x9d\nbecause they provide the essential elements of habitat food, water, and shelter - for thousands of species of\naquatic and terrestrial plants and animals. See U.S.\n2\n\nPhoto 1 By Muffet\nhttp://commons.wikimedia.org/wiki/File:\nBlue_heron.jpg [CC-BY-2.0 ]\n\n\x0cEnvironmental Protection Agency, Wetlands Overview. Almost 50% of endangered animal\nspecies in the United States depend on wetlands for survival and viability, even though\nwetlands only occupy about 3.5% of the land area in the U.S. See William J. Mitsch, James\nG. Gosselink, Wetlands 344 (4th ed. John Wiley & Sons, 2007). More generally, according\nto Fish and Wildlife Service estimates, 43% of all of the federally listed endangered or\nthreatened species rely on wetlands either directly or indirectly. See Watershed Academy\nWeb at 7. Not surprisingly, therefore, the Secretariat for the Ramsar Convention on\nWetlands has referred to wetlands as \xe2\x80\x9creservoirs of biodiversity.\xe2\x80\x9d See Ramsar Convention\non Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services - An\nIntroduction. Globally, coastal wetlands \xe2\x80\x9ccontain some of the most biologically diverse and\nproductive communities in the world.\xe2\x80\x9d Id.\nWetlands are not just habitat for endangered or threatened species, though. About 80% of\nthe breeding bird population in the United States rely on wetlands for their primary habitat.\nSee Mitsch & Gosselink, supra at 336. Between 1950 and 1994, for instance, the coastal\nwetlands in the Chesapeake Bay Region supported an annual average of 79,000 black\nducks and 14,000 pintails on their southernly migration. See Watershed Academy Web at\n7. Two thirds of the 10-12 million migratory waterfowl in the continental United States\nreproduce in the prairie pothole wetlands of the Midwest. See U.S. Environmental\nProtection Agency, Wetlands Overview. Many animals, including beavers and wood ducks,\nand plants, including wild rice and cattails, rely almost exclusively on wetlands. Id. at 6.\nWetlands provide rich habitats for several reasons. In many\nwetlands, the shallow water, high levels of inorganic nutrients, and\nhigh rates of productivity of new plant biomass combine to provide\nideal conditions for the development of organisms at the bottom of\nthe food chain. See U.S. Environmental Protection Agency,\nAmerica\xe2\x80\x99s Wetlands: Our Vital Link Between Land and Water 6-7\n(2003) [hereinafter \xe2\x80\x9cAmerica\xe2\x80\x99s Wetlands\xe2\x80\x9d]. In addition, the plant\nbiomass in the wetlands is increasingly enriched as it breaks down\ndue to bacterial, fungal and protozoan activity. Id. at 6. The\nbiomass provides food for small invertebrates and fish, which, in\nturn, provide food for larger amphibians, reptiles, fish, birds and\nPhoto 2\nmammals. Id. The high levels of biomass and invertebrate life\nhttps://commons.wikime\nmake wetlands an important nursery area for many fish and\ndia.org/wiki/File:Cattails\nshellfish. See Watershed Academy Web at 7. Further, many species\n_in_the_Everglades.jpg\nof fish rely on wetlands because they require areas of shallow water\n[Public Domain]\nfor breeding and feeding, or for some other portion of their life cycle.\nId. at 4; see also William A. Niering, Wetlands 32 (Chanticleer Press, 1985).\n\n3\n\n\x0cB.\n\nFlood Control\n\nWetlands help prevent or minimize flooding and flood damage by storing and slowing\nwater. See America\xe2\x80\x99s Wetlands, at 8. Like sponges, wetlands absorb and slowly release\nrain, snow melt, groundwater and surface water, including flood waters. Id. By doing so,\nthey reduce the speed and volume of\nrunoff entering streams and rivers. See\nRamsar Convention on Wetlands,\nRamsar\nConvention\nSecretariat,\nWetland Ecosystem Services - Flood\nControl [hereinafter \xe2\x80\x9cRamsar - Flood\nControl\xe2\x80\x9d] The trees and vegetation in\nwetlands can also slow the speed of\nflood waters and distribute them over the\nfloodplain. See America\xe2\x80\x99s Wetlands, at\n8. By storing and slowing water,\nwetlands can reduce flood heights and\nreduce erosion downstream. See Photo 3 By LSUSoccerbum\nWatershed Academy Web, at 9. The http://commons.wikipedia.org/wiki/File:Clearview_Metair\nie_08_30_2005.jpg [Public Domain]\nflood control benefits provided by\nwetlands can be particularly important near urban areas where there are significant\nvolumes of runoff from pavement and buildings. Id. Regardless of where the wetlands are\nlocated, though, by reducing flooding and flood damages, wetlands provide economic\nbenefits, by reducing property damages, and protect health, safety and welfare. Id. at 10.\nWhen wetlands within a floodplain are converted to other uses, peak river discharges\nfollowing snowmelt or heavy rains that used to dissipate broadly across the floodplain are\nconcentrated in a smaller area, leading to deeper and more damaging floods. See Ramsar\n- Flood Control. Prior to significant filling and draining, the bottomland hardwood riparian\nwetlands of the Mississippi River used to store almost 60 days of floodwater. See America\xe2\x80\x99s\nWetlands, at 8-9. Now, they only store about 12 days of floodwater. Id. Engineered flood\ncontrol measures, such as dredging or the construction of levees, are significantly more\nexpensive than preserving or restoring wetlands. Id. A study in Minnesota determined that it\nwould cost 1.5 million dollars per year to replace the flood control provided by 5000 acres\nof drained wetlands. See Watershed Academy Web, at 10.\nCoastal wetlands can play a significant role in protecting communities from storm surges\nand conversion of those wetlands reduces those natural defenses. See Ramsar - Flood\nControl. When Hurricane Katrina inundated 80% of the City of New Orleans in 2005, many\nexperts suggested that the destruction of significant amounts of coastal wetlands in the\ndecades prior to the storm, and the artificial constriction of the Mississippi River\xe2\x80\x99s\nfloodplains contributed to the magnitude of the flooding. Id. Protection of coastal wetlands\nis particularly important in light of the fact that 39% of the U.S. population lived in coastal\n4\n\n\x0cshoreline counties in 2010, even though those counties represented less than 10% of the\nland area of the United States (excluding Alaska). See U.S. Department of Commerce,\nNational Oceanic and Atmospheric Administration, NOAA\xe2\x80\x99s State of the Coast: National\nCoastal Population Survey. In addition, the population in those counties increased 39%\nbetween 1970 and 2010. Id.\n\nC.\n\nErosion Prevention and Shoreline Protection/Stabilization\n\nJust as wetlands prevent or reduce\nflooding by storing and slowing water\nflows, they also protect shorelines and\nstream banks from erosion. See\nAmerica\xe2\x80\x99s Wetlands, at 9. The roots of\nwetland plants stabilize the soil and the\nplants absorb wave energy and break up\ncurrents. Id. Erosion prevention can\nprovide significant benefits, as coastal\nerosion causes 500 million dollars in\ncoastal property loss each year,\nincluding damage to structures and\nconversion of land to aquatic areas. See\nPhoto 4 USFWS\nU.S. Department of Commerce, National\nhttp://commons.wikimedia.org/wiki/File:Coastal_wetlands.\nOceanic and Atmospheric Administration,\njpg\nCoastal Hazards. A study by the Heinz\nCenter in 2000 estimated that erosion may destroy one quarter of the houses located within\n500 feet of the shoreline by the middle of this century. Id. The federal government spends\nabout 150 million dollars each year on erosion control measures. Id. In recognition of the\nerosion prevention benefits of wetlands, some states are restoring coastal wetlands to\nprovide buffers from storm surges. See America\xe2\x80\x99s Wetlands, at 9.\n\nD.\n\nWater Quality Protection\n\nWetlands play a vital role in protecting and\nimproving water quality by removing sediments,\norganic and sometimes toxic pollutants, and excess\nnutrients from water and storing and/or processing\nthose materials. See America\xe2\x80\x99s Wetlands, at 8.\nWetland soils and vegetation capture and retain\nnutrients in water that might otherwise cause\ndangerous levels of nutrients in groundwater that\nserves as a drinking water source or cause\neutrophication of downstream water bodies.\nSee Ramsar Convention on Wetlands, Photo 5 USDA/ NRCS Photo \xe2\x80\x93 Martin Pena\n5\n\nhttp://commons.wikimedia.org/wiki/File:NRCSID89001__Idaho_(4105)(NRCS_Photo_Gallery).jpg\n\n\x0cRamsar Convention Secretariat, Wetland Ecosystem Services - Water Purification\n[hereinafter \xe2\x80\x9cRamsar - Water Purification\xe2\x80\x9d]. Eutrophication of water bodies causes massive\ngrowth in algae, which depletes oxygen in the water and blocks sunlight which is essential\nfor many of the plants and animals in the water. Id.\nJust as wetlands remove and store nutrients, wetland plants trap suspended sediments that\ncould otherwise smother downstream spawning areas, insects and plants. See America\xe2\x80\x99s\nWetlands, at 8. In addition, increased turbidity in streams caused by excess sediments can\nlead to increased water temperatures, reduced light penetration and plant growth, and\nreduced visibility in the stream, making it more difficult for fish to find prey. See North\nCarolina State University, Department of Biological and Agricultural Engineering, Soil in Our\nStreams, Stream Notes, Vol. 1, No. 1. Some wetland animals, such as oysters in the\nChesapeake Bay, can even help to filter out nutrients and sediments from water that flows\nthrough wetlands. See Ramsar - Water Purification.\nWetland plants also protect water quality by removing and storing organic wastes. See\nAmerica\xe2\x80\x99s Wetlands, at 8. There are clear economic benefits associated with this filtering\nfunction, as a 1990 study determined that the Congaree Swamp in South Carolina removes\nas much pollution from the water as would be removed by a 5 million dollar wastewater\ntreatment plant. Id. Similarly, in 1997, the city of New York determined that it could spend\nless than half as much to protect the city\xe2\x80\x99s water quality by purchasing and protecting\nwetlands than it would spend if it constructed new wastewater treatment plants. See\nRamsar - Water Purification. Governments and developers are even constructing wetlands\nto remove nutrients or waste from contaminated water. Id.\nSome wetland plants can even remove heavy metals and other toxic substances from the\nwater that flows through wetlands. Id. As a result, wetlands are being constructed to treat\nwastewater from mining and other activities, as well as to treat sewage effluent. See\nRamsar Convention on Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem\nServices - Sediment and Nutrient Retention and Export.\nAlthough wetlands can provide these water quality protection features, excessive levels of\nnutrients, sediments, or pollutants in wetlands can degrade the wetlands and reduce or\neliminate many of the values that they would otherwise provide. See Watershed Academy\nWeb, at 9.\n\nE.\n\nGroundwater Replenishment\n\nDepending on their location and type, wetlands may maintain stream flow during dry\nperiods and may replenish groundwater. See America\xe2\x80\x99s Wetlands, at 8. Although some\nwetlands have no connection to groundwater, others are located on permeable soils\noverlaying aquifers. See Ramsar Convention on Wetlands, Ramsar Convention Secretariat,\nWetland Ecosystem Services - Groundwater Replenishment. In those wetlands, water can\n6\n\n\x0cpercolate through the soil into the aquifer to recharge the aquifer when the water table is\nlow. Id. Conversely, when the water table is high, the wetland can serve as a groundwater\ndischarge zone. Id. Globally, almost 95% of available fresh water is contained in\ngroundwater aquifers, and one third of the world\xe2\x80\x99s population relies on groundwater for\ndrinking water. Id. One of the most productive groundwater sources in the United States is\nthe Floridan aquifer system, which stretches throughout Florida, southern Georgia, and\nportions of South Carolina and Alabama. See Watershed Academy Web, at 9. Wetlands in\nFlorida play an important role in recharging that aquifer, as a study found that groundwater\nin a particular area of the aquifer would be reduced by 45% if 80% of a 5 acre Florida\ncypress swamp in the area was drained. Id.\n\nF.\n\nClimate Regulation\n\nWhile many of the values and functions of wetlands are tied to water and water quality,\nwetlands can also provide climatic benefits. Some wetlands, especially peat bogs, store\nlarge amounts of carbon, functioning as \xe2\x80\x9ccarbon sinks.\xe2\x80\x9d See Ramsar Convention on\nWetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services - Climate Change\nMitigation & Adaptation. By doing so, they help slow the rate of greenhouse gas emissions\nthat contribute to global climate change. Id. However, when wetlands are converted for\ndevelopment, trees and vegetation are removed and sometimes burned, releasing the\ncarbon that was stored in the wetlands into the atmosphere. Id. Those releases may be\nsignificant. A recent study indicated that damage to peatlands caused greenhouse gas\nemissions equal to 1/10 of the emissions from the worldwide use of fossil fuels. Id.\nWetlands will be impacted by, and impact society\xe2\x80\x99s response to climate change in several\nways. First, to the extent that climate change results in the predicted sea level rise and\nextreme weather events, wetlands will play an important role in adaptation due to the flood\ncontrol, erosion prevention, groundwater replenishment, habitat protection, and water\nquality protection functions that they can serve. Id. They can only provide those benefits,\nthough, if they survive. Unfortunately, the United Nations Intergovernmental Panel on\nClimate Change (IPCC) cautions that wetlands are among the ecosystems \xe2\x80\x9cmost\nvulnerable to climate change.\xe2\x80\x9d Id.\n\nG.\n\nWetland Products\n\nWetlands may also provide more tangible economic\nbenefits in the form of products that can be\nharvested from them. Cranberries, blueberries, rice\nand many other plants are produced in wetlands.\nSee America\xe2\x80\x99s Wetlands, at 10. Various medicines\ncan also be extracted from wetland plants and soils.\nId.\n\nPhoto 6 USDA Photo http://commons.wikimedia.org/wiki/File:Cranberr\ny_bog.jpg\n\n7\n\n\x0cTimber is frequently harvested from wetlands, and there are 55 million acres of wetlands\nsupporting timber harvesting in the United States. See U.S. Environmental Protection\nAgency, EPA-841-R-02-001, National Water Quality Inventory, 2000 Report 45 (2002)\n[hereinafter \xe2\x80\x9c2000 National Water Quality Inventory\xe2\x80\x9d]. Fish and shellfish are another\nwetland \xe2\x80\x9cproduct.\xe2\x80\x9d In the southeastern United States, about 96% of the fish and shellfish\nthat are harvested commercially, and 50% of the fish that are caught by recreational\nfishers, rely on estuarine or coastal wetlands. See Watershed Academy Web, at 11.\nNationally, about 75% of the fish and shellfish that are harvested commercially depend on\nwetlands for food or habitat. Id. More than 2 billion dollars worth of fish and shellfish are\nharvested commercially in the United States every year. Id.\nWetlands provide essential habitat for several other animals that are trapped and sold\ncommercially, including muskrat, beaver, otter, mink and alligators. Id. at 12. In 2000, EPA\nestimated that more than 70 million dollars worth of muskrat pelts were harvested every\nyear. See 2000 National Water Quality Inventory, at 45.\n\nH.\n\nRecreation, Aesthetics, Education and Research\n\nIn addition to the values outlined above, wetlands often provide opportunities for recreation,\neducation and research. EPA estimates that more than half of the adult population in the\nUnited States hunts, fishes, engages in bird-watching or photographs wildlife, and that they\nspend about 59.5 billion dollars per year on those activities. See America\xe2\x80\x99s Wetlands, at 10.\nA 2011 survey conducted by the Fish and Wildlife Service found that the annual\nexpenditures had increased to 144.5 billion. See U.S. Department of the Interior, U.S. Fish\nand Wildlife Service, and U.S. Department of Commerce, 2011 National Survey of Fishing,\nHunting, and Wildlife Associated Recreation 4 (2011). A significant amount of that hunting,\nfishing, or wildlife watching takes place in wetlands, as the natural beauty and diversity of\nanimal and plant life in many wetlands promotes recreational tourism. See Ramsar\nConvention on Wetlands, Ramsar Convention Secretariat, Wetland Ecosystem Services Recreation & Tourism [hereinafter \xe2\x80\x9cRamsar - Recreation and Tourism\xe2\x80\x9d]. In EPA\xe2\x80\x99s National\nWater Quality Inventory report to Congress in 2000, the agency indicated that \xe2\x80\x9c[a]t least\n$18 billion in economic activity is generated annually from recreational fishing in coastal\nwetlands by 17 million Americans.\xe2\x80\x9d See 2000 National Water Quality Inventory, at 45.\nWhile hunting, fishing and bird-watching attract many people to wetlands, others visit to\nhike, boat, paint, photograph, record, or otherwise appreciate the beauty and aesthetics of\nthe wetland ecosystems. See America\xe2\x80\x99s Wetlands, at 10. Many of those wetland values are\ndifficult to capture in purely economic terms.\nWetlands provide rich educational opportunities for students of all ages, ranging from\ngrammar schools through adult continuing education programs and programs at nature\ncenters. See Watershed Academy Web, at 13. As EPA notes, wetlands are excellent sites\n\xe2\x80\x9cto learn about vegetative structure ... and ecological functions ..., natural ecological\n8\n\n\x0cprocesses ..., biodiversity, and plant-animal interactions.\xe2\x80\x9d Id.\nWhile wetlands can provide significant recreational and educational opportunities, some\nrecreational or tourism uses of wetlands could harm wetlands, so wetland managers\nfrequently must limit recreational and educational uses to specific areas to protect the\nwetlands.See Ramsar - Recreation & Tourism.\n\nI.\n\nProtection of Cultural Values\n\nIn some cases, wetlands can also be closely tied to the cultural heritage of the surrounding\ncommunities. The songs, music, dance, art, literature, stories and rituals of an area may be\ndeeply influenced by the wetland ecosystem in which it is located. See Ramsar Convention\non Wetlands, Ramsar Convention Secretariat, The Cultural Heritage of Wetlands:\nWetlands, An Inspiration in Art, Literature, Music and Folklore. Like the aesthetics of\nwetlands, these values are difficult to measure in purely economic terms, but are vital to the\ncommunities. See Ramsar Convention on Wetlands, Ramsar Convention Secretariat,\nWetland Ecosystem Services: Cultural Values. As the wetlands disappear, the ties to the\nland and many of the stories, rituals and traditions of the communities could disappear as\nwell.\n\nQuestions and Comments\n1. If the services that each wetland provides will vary based on the type of wetland and\nits size and location, should all wetlands be provided the same level of protection? Are\nthey provided the same level of protection? Think about those questions as you read\nabout the standards that the government uses to determine whether to issue a permit\nto authorize development in wetlands, the process that the government uses to\ndetermine appropriate mitigation for destruction of wetlands, the manner in which the\ngovernment structures its enforcement programs, the analysis that is used to determine\nwhether government restrictions on wetlands development constitute a taking, and\nother issues throughout this book.\n\nRESOURCES\nEPA Video - Wetlands and Wonders - Reconnecting Children with Nearby Nature\nEPA\xe2\x80\x99s Watershed Academy - Wetland Values and Functions\nEPA - America\xe2\x80\x99s Wetlands\nRamsar Convention Ecosystem Services Website\nWetlands: Their Use and Regulation (1984 OTA report)\nEPA Watershed Academy Webinars (including wetlands)\nVideos on wetland values and functions from Conservation Media, GreenTreks Network\n(Pennsylvania\xe2\x80\x99s wetlands), Delaware DNREC, Oklahoma Gardening\nLiquidity: The Value of Wetlands - independently produced video\nEPA\xe2\x80\x99s Connectivity Study - Connectivity of Wetlands and Streams to Downstream Waters\n\n9\n\n\x0cII.\n\nDefinition and Types of Wetlands\n\nA.\n\nDefinitions\n\nIn general terms, wetlands are \xe2\x80\x9clands where saturation with water is the dominant factor\ndetermining the nature of soil development and the types of plant and animal communities\nliving in the soil and on its surface.\xe2\x80\x9d See U.S. Environmental Protection Agency, Wetland\nDefinitions. That description, which appears on the web site of the Environmental\nProtection Agency (EPA), is adapted from a more elaborate definition adopted by the\nUnited States Fish and Wildlife Service, which administers a National Wetlands Inventory,\nas part of its \xe2\x80\x9cCowardin\xe2\x80\x9d classification system (named for the scientist who developed it).\nThe Fish and Wildlife Service definition for wetlands is:\nlands transitional between terrestrial and aquatic systems where the water table is\nusually at or near the surface or the land is covered by shallow water. For purposes of\nthis classification, wetlands must have one or more of the following three attributes: (1)\nat least periodically, the land supports predominantly hydrophytes, (2) the substrate is\npredominantly undrained hydric soil, and (3) the substrate is nonsoil and is saturated\nwith water or covered by shallow water at some time during the growing season of each\nyear.\nSee L. Cowardin, et al., U.S. Department of the Interior, Fish and Wildlife Service,\nClassification of Wetlands and Deep-Water Habitats of the United States (1979).\nEPA and the Army Corps of Engineers have adopted the following conceptually, though not\nlinguistically, similar definition of wetlands for their regulatory programs:\nthose areas that are inundated or saturated by surface or ground water at a\nfrequency and duration sufficient to support, and that under normal circumstances do\nsupport, a prevalence of vegetation typically adapted for life in saturated soil\nconditions.\nSee 33 C.F.R. \xc2\xa7 328.3 (b) (Corps\xe2\x80\x99 regulations); 40 C.F.R. \xc2\xa7 230.3(t) (EPA\xe2\x80\x99s regulations).\nAlthough the Fish and Wildlife Service has developed maps of wetlands as part of its\nNational Wetlands Inventory, the maps are not designed or intended to be used for legal or\nregulatory purposes to identify the existence of, or boundaries of, wetlands. See U.S. Fish\nand Wildlife Service, National Wetlands Inventory: Frequently Asked Questions. Instead, as\noutlined in Part IV of this chapter, both the classification of a specific piece of property as a\n10\n\n\x0cwetland and the boundaries of the wetland are determined through a process known as\ndelineation. The delineation process focuses on whether the property has the soils,\nvegetation, and hydrology that are typically found in wetlands.\n\nB.\n\nTypes of Wetlands\n\nThere are many different ways to categorize or classify wetlands. This section begins by\nexamining the Cowardin classification system developed by the Fish and Wildlife Service,\ntakes a closer look at four common types of wetlands, and then focuses on the\nHydrogeomorphic (HGM) classification system that categorizes wetlands based on the\nvalues and functions that they provide.\n\n1.\n\nCowardin classification\n\nUsing the Cowardin classification system mentioned above, the Fish and Wildlife Service\nidentifies the following five types of wetland and deepwater habitat systems:\n\xef\x82\xb7\n\nMarine\n\n\xef\x82\xb7\n\nEstuarine\n\n\xef\x82\xb7\n\nLacustrine\n\n\xef\x82\xb7\n\nRiverine\n\n\xef\x82\xb7\n\nPalustrine\n\nMarine systems encompass the open ocean and coastlines, and include coastal lagoons,\nrocky shores and coral reefs. See L. Cowardin, et al., U.S. Department of the Interior, Fish\nand Wildlife Service, Classification of Wetlands and Deep-Water Habitats of the United\nStates 4 (1979).\nEstuarine systems encompass deepwater habitats \xe2\x80\x9cthat are usually semi-enclosed by land\nbut have ... access to the open ocean, and in which ocean water is at least occasionally\ndiluted by freshwater runoff from the land.\xe2\x80\x9d Id. at 4. Estuarine systems include areas such\nas deltas, tidal marshes, coastal brackish areas, and mangrove swamps. The marine and\nestuarine systems are generally salt water habitats. The other systems are generally fresh\nwater habitats, although there are some tidal riverine systems.\nFor wetlands, lacustrine systems generally refer to wetlands associated with lakes and\nreservoirs. Id. at 9-10. Similarly, the wetlands included within riverine systems are\ngenerally wetlands associated with rivers and streams. Id. at 7-8. However, whether\n11\n\n\x0cwetlands in or near rivers, lakes or streams fit within the lacustrine or palustrine categories,\nor another category, will depend on the amount of \xe2\x80\x9ctrees, shrubs, persistent emergents,\nemergent mosses or lichens\xe2\x80\x9d in the wetlands. Riverine systems do not include wetlands\ndominated by those features, and lacustrine systems do not include wetlands where those\nfeatures cover more than 30% of the wetlands. Id. at 7-10. Wetlands associated with rivers\nand lakes that do not fit within the lacustrine or riverine systems are included with the much\nbroader final category of wetlands, the palustrine system.\nThe palustrine system includes \xe2\x80\x9call non-tidal wetlands dominated by trees, shrubs,\npersistent emergents, emergent mosses or lichens\xe2\x80\x9d and similar wetlands in some tidal\nareas. Id. at 10. The system includes marshes, swamps, bogs, fens, and prairies. Id.\nMost of the wetland acreage in the United States is within this category. According to a\nrecent Fish and Wildlife Service report, in 2009, 88% of the wetlands in the\nconterminous United States were in the palustrine system. See Stedman, S. & T.E.\nDahl, National Oceanic and Atmospheric Administration, National Marine Fisheries\nService and U.S. Department of the Interior, Fish and Wildlife Service, Status and\nTrends of Wetlands in the Coastal Watersheds of the Conterminous United States:\n2004 to 2009 38 (2013).\n\n2.\n\nMarshes, Swamps, Bogs, and Fens\n\nWithin the various wetland and deepwater habitat systems identified above, the most\nprevalent types of wetlands are marshes, swamps, bogs, and fens. The differences\nbetween those types of wetlands are described in the following sections.\n\nMarshes\nMarshes are wetlands that are characterized by soft stemmed herbaceous plants, such as\ncattails and pickerelweed, see Niering, supra, at 21, and are frequently or continually\ninundated with water. See U.S. Environmental Protection Agency, Marshes. While some\nmarshes may be fed by groundwater, marshes usually\nreceive most of their water from surface water. Id.\nTidal marshes are most prevalent on the east coast\nof the United States and along the Gulf of Mexico. Id.\nNon-tidal marshes are \xe2\x80\x9cthe most prevalent and\nwidely distributed wetlands in North America.\xe2\x80\x9d Id. Nontidal marshes are often found in poorly drained\ndepressions along streams and in the shallow water\nalong lakes, rivers, and ponds. Id.\nPhoto 7 Photo By Jpaw1991 (Own work)\nhttp://commons.wikimedia.org/wiki/File:\nCattails.jpg [CC-BY-SA-3.0 ]\n\nIncluded within the category of non-tidal marshes\n12\n\n\x0care freshwater marshes, wet meadows, wet prairies, prairie potholes, vernal pools\nand playa lakes. Wet meadows commonly occur in poorly drained areas, resemble\ngrasslands, and are generally drier than other marshes except during seasonal high water\nperiods. See U.S. Environmental Protection Agency, Wet Meadows. They frequently are\nfound in agricultural areas. Id. Wet prairies are similar to wet meadows, but are wet for\nlonger periods of time. See U.S. Environmental Protection Agency, EPA-843-F-01-002b,\nTypes of Wetlands (Sept. 2001). Prairie potholes are depressional wetlands that are\nfound most frequently in the upper midwest. See U.S. Environmental Protection Agency,\nPrairie Potholes. Many species of migratory waterfowl rely on these wetlands for breeding\nand feeding. Id. Vernal pools are seasonal depressional wetlands found primarily on the\nwest coast and in the glaciated areas of the northeast and midwest. See U.S.\nEnvironmental Protection Agency, Vernal Pools. They are covered by shallow water during\nperiods of the winter and spring, but may be dry for the summer and fall. Id. They are\nusually found in gently sloping grassland plains and usually overlay bedrock or a layer of\nhard clay. Id. Playa lakes are round hollows usually found in the southern high plains and\nare only present for short periods during the year. See U.S. Environmental Protection\nAgency, Playa Lakes.They are vital because they store water in a region of the country that\nreceives very little rain and has no permanent rivers or streams. Id.\n\nSwamps\nSwamps are wetlands dominated by woody plants,\nsuch as trees and shrubs. See Niering, supra, at 22.\nThe soils are saturated during the growing season and\nstanding water is not uncommon during certain times of\nthe year. See U.S. Environmental Protection Agency,\nSwamps. Swamps are generally divided into two types,\nforested swamps and shrub swamps, depending on\nthe vegetation present. Id.\nForested swamps are found throughout the United\nStates and are frequently inundated with surface water\nPhoto 8 NPS Photo\nfrom rivers and streams. Id. While they vary by\nhttp://commons.wikimedia.org/wiki/File:\ngeographic region, trees typically found in forested\nBig_thicket.jpg\nwetlands include red maple, white oak and bald\ncypress. See U.S. Environmental Protection Agency, EPA-843-F-01-002b, Types of\nWetlands (Sept. 2001). Forested swamps in the south central United States are generally\nreferred to as bottomland hardwood swamps.\nShrub swamps are similar to forested swamps and sometime found adjacent to them, but\nare dominated by shrub vegetation. See U.S. Environmental Protection Agency, Swamps.\nThey are often found along streams and in floodplains, although there are also tidal shrub\nswamps, including mangrove swamps. Id.\n13\n\n\x0cBogs and Fens\nBogs are acidic peatlands, often covered by a blanket of sphagnum moss. See U.S.\nEnvironmental Protection Agency, Bogs. They are mostly found in the northeast and the\nGreat Lakes region (northern bogs), although they can also be found in the southeast\n(pocosins) and receive most of their water from precipitation, as opposed to runoff,\ngroundwater or streams. Id. Large amounts of carbon are stored in the peat deposits in\nbogs, so these wetlands play an important role in minimizing and adapting to climate\nchange. Id.\nFens also are peatlands, but receive water from groundwater as well as precipitation. See\nU.S. Environmental Protection Agency, Fens. Consequently, they are less acidic and have\nhigher nutrient levels than bogs and can support a greater diversity of plants and animals.\nId.\n\n3.\n\nHydrogeomorphic (HGM) Classification\n\nThe hydrogeomorphic (HGM) classification system is a system developed by the U.S. Army\nCorps of Engineers to classify wetlands and other aquatic systems based on their ability to\nperform various functions. The HGM system was originally developed in 1993 as a tool to\nclassify wetlands based on their location within a landscape (\xe2\x80\x9cgeomorphic setting\xe2\x80\x9d - i.e.,\nlocation on a hillside, in a valley, adjacent to rivers) and their hydrology (based on the\nsource of the water in the wetland, such as runoff, groundwater or precipitation; the flow\nrate of water; and the duration of water in the wetland). See Mark M. Brinson, U.S. Army\nCorps of Engineers, Technical Report WRP-DE-4, A Hydrogeomorphic Classification for\nWetlands (Aug. 1993). It was expanded a few years later to focus on assessing the\nfunctions of wetlands, based on the original HGM classifications. See R. Daniel Smith,\nU.S. Army Corps of Engineers, Technical Report WRP-DE-9, An Approach for Assessing\nWetland Functions Using Hydrogeomorphic Classification, Reference Wetlands, and\nFunctional Indices (Oct. 1995). The HGM system was originally designed for use in the\nClean Water Act section 404 permit program that the Corps administers, see Chapter 2 of\nthis book, but, in 1997, most federal agencies that had jurisdiction over wetlands under\nvarious laws agreed to use the HGM system to assess wetland functions. See U.S. Army\nCorps of Engineers, The National Action Plan to Implement the Hydrogeomorphic\nApproach to Assessing Wetland Functions, 62 Fed. Reg. 33607 (June 20, 1997). Pursuant\nto that 1997 \xe2\x80\x9cNational Action Plan,\xe2\x80\x9d the Corps of Engineers has developed a series of\nregional guidebooks to explain the process for applying the system to various HGM classes\nacross the United States. See U.S. Army Corps of Engineers, Guidebooks.\nThe HGM classification system divides wetlands into the following seven classes:\n\n14\n\n\x0c\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nDepressional\nRiverine\nMineral Flats (Flats)\nOrganic Flats (Extensive peatlands)\nTidal Fringe\nLacustrine Fringe\nSlopes\n\nSee U.S. Army Corps of Engineers, Hydrogeomorphic Approach for Assessing Wetlands\nFunctions, Wetland Classifications.\nSome of the characteristics of the various types of systems and some of the types of\nwetlands included in each system, are identified in the following chart:\n\nHGM Type\n\nCharacteristics\n\nTypical Wetlands\n\nDepressional\n\nLocated in topographic depressions; Fed\nby precipitation, surface water,\ngroundwater; Water flows toward the\ncenter of the depression; Duration of\nwetness varies from ephemeral to\nperennial.\n\nPrairie potholes, playa\nlakes, and vernal pools\n\nRiverine\n\nLocated in floodplains and riparian\ncorridors associated with stream\nchannels; Water source is primarily\noverbank flow, with some groundwater\nand other connections; Water flows out to\nthe channels during rainfall events and\nafter flooding.\n\nBottomland hardwoods\n\nMineral Flats\n\nLocated on slight slopes; Water source is\nprimarily precipitation; Water moves\nslowly out of these wetlands.\n\nPine flatwoods\n\nExtensive\npeatlands\n\nLocated on flat interfluves or in locations\nwhere depressions have filled with peat;\nwater source is primarily precipitation;\nWater flows out through overland flow and\nseepage to groundwater.\n\nNorthern peatlands\n\n15\n\n\x0cTidal Fringe\n\nLocated along the coast and in estuaries;\nTidal currents are the predominant water\nsource, although groundwater and\nprecipitation may be additional sources;\nBi-directional flow of water between the\nwetlands and tides; These wetlands are\nseldom dry.\n\nSalt marsh\n\nLacustrine\nFringe\n\nUsually located adjacent to lakes where\nthe water table of the lake maintains the\nwetland\xe2\x80\x99s water table; Water sources\ninclude the lake, precipitation and\ngroundwater discharge; Surface water\nflow is bi-directional.\n\nUn-impounded\nmarshes bordering the\nGreat Lakes\n\nSlopes\n\nUsually located on slight to steep sloping\nland; Predominant water source is\ngroundwater and some precipitation;\nSurface water generally flows quickly\ndowngradient and out of the wetland.\n\nFens\n\nSee U.S. Army Corps of Engineers, Hydrogeomorphic Approach for Assessing Wetlands\nFunctions, Wetland Classifications.\nSince wetlands in the same HGM category have similar geomorphology (location within a\nlandscape) and similar hydrology, they will generally perform similar functions. See Dennis\nW. Magee, A Primer on Wetland Ecology, Wetlands Law and Policy: Understanding\nSection 404 43-49 (Section of Environment, Energy and Resources, American Bar\nAssociation, 2005). For instance, because depressional wetlands trap more water than\nsome other categories of wetlands, they may provide groundwater recharge functions that\nwetlands in other HGM categories, like slope wetlands, may not. Id. at 43-44. Similarly,\nbecause of their hydrology and geomorphology, lacustrine fringe wetlands serve a very\nimportant floodwater storage function, among other functions. Id. at 45-46. Tidal fringe\nwetlands can perform significant water quality functions, among other functions. Id. at 4849. Since the wetlands within similar categories perform similar functions, the HGM\nclassification system tailors assessment tools within each category to determine how well a\nspecific wetland can perform the functions assessed for that category. Id. at 52-53.\n\n16\n\n\x0cRESOURCES\nCowardin Classification\nFWS Fact Sheets on Wetland and Deepwater Habitat Systems - Marine,\nEstuarine, Riverine, Lacustrine, Palustrine\nCorps of Engineers HGM web page\nEPA Wetland Types web page\n\nIII.\n\nStatus and Trends\n\nAt the end of the eighteenth century, it is estimated that there were approximately 392\nmillion acres of wetlands in the United States, with 221 million acres in the lower 48 states.\nSee Dahl, T.E., U.S. Department of Interior, U.S. Fish and Wildlife Service, Wetlands\nLosses in the United States: 1780s to 1980s 1 (1990). By 1980, the Fish and Wildlife\nService concluded that, after a \xe2\x80\x9c200 year history of wetland conversion\xe2\x80\x9d, wetland acreage in\nthe lower 48 states had declined by 53% to about 104 million acres. Id. Over that time\nperiod, therefore, about 585,000 acres of wetlands were lost every year. During that time\nperiod, California lost 90% of its wetlands, 10 states (Arkansas, California, Connecticut,\nIllinois, Indiana, Iowa, Kentucky, Maryland, Missouri, and Ohio) lost 70% or more of their\nwetlands, and 22 states lost at least 50% of their wetlands. Id. at 3-5. Except for Alaska,\nHawaii, and New Hampshire, every other state lost at least 20% of their wetlands during\nthat time period. Id. An overwhelming percentage of those losses occurred before the\n1950s, as a 1983 Fish and Wildlife Service report found that there were 108.1 million acres\nof wetlands in the lower 48 states in the 1950s. See U.S. Department of Interior, U.S. Fish\nand Wildlife Service, Status and Trends of Wetlands and Deepwater Habitats in the\nConterminous United States: 1950s to 1970s 3 (Apr. 1983). That report also determined\nthat the rate of wetland losses between the 1950s and 1970s was 458,000 acres per year.\nId. In a follow-up survey, the Fish and Wildlife Service determined that the rate of wetland\nloss has decreased, between the mid-1980s through mid-1990s, to 290,000 acres per year.\nDahl, T.E. & C.E. Johnson, U.S. Department of the Interior, U.S. Fish and Wildlife Service,\nStatus and Trends of Wetlands in the Conterminous United States: Mid\xc2\xb71970s to Mid\xc2\xb7l980s\n3 (1991).\nThe Fish and Wildlife Service has continued to conduct periodic surveys of the status of\nwetland acreage in the United States and, in a report issued in 2000, concluded that the\nrate of wetland loss declined, during the period from 1986-1997, to 58,500 acres per year,\nand that 105.5 million acres of wetlands remained in the conterminous United States in\n1997. See Dahl, T.E., U.S. Department of the Interior, U.S. Fish and Wildlife Service,\nStatus and Trends of Wetlands in the Conterminous United States: 1986 to 1997 9 (2000).\nNinety-five percent of the remaining wetlands, at that time, were inland freshwater\nwetlands, while five percent were estuarine and saltwater wetlands. Id. at 10. Ninety-eight\n17\n\n\x0cpercent of the wetland losses during the study period were losses to freshwater wetlands.\nId. The study suggested that the overall decline in the rate of wetland losses was due to\n\xe2\x80\x9cimplementation and enforcement of wetland protection measures and elimination of some\nincentives for wetland drainage,\xe2\x80\x9d among other factors. Id. For the first time, that study also\nattempted to identify the types of activities that contributed to the wetland losses. Thirty\npercent of the wetland losses during the study period were attributed to urban\ndevelopment, twenty-six percent were attributed to agriculture, twenty three percent to\nsilviculture, and 21 percent to rural development. Id. at 11. Road construction is a major\nfactor in wetland conversion, as it often entails the placement of fill material in wetlands and\nit opens up previously inaccessible areas, wetland and otherwise, to development. See\nRoyal C. Gardner, Lawyers, Swamps, and Money 95 (Island Press 2011). To serve a\ngrowing population, energy exploration, including offshore exploration and mountaintop\nremoval mining, has also grown as a source of wetland destruction. Id. at 96.\nIn 2005, the Fish and Wildlife Service released a report that found, for the first time, that\nwetland acreage in the conterminous United States was increasing. Dahl, T.E., U.S.\nDepartment of the Interior, U.S. Fish and Wildlife Service, Status and Trends of Wetlands in\nthe Conterminous United States: 1998 to 2004 (2005). The study found that there were\n107.7 million acres of wetlands in the conterminous United States in 2004, and that wetland\nacreage increased by 32,000 acres per year between 1998 and 2004. Id. at 16. The report\nsuggested that the net gains in wetland acreage were due to \xe2\x80\x9cwetlands created, enhanced\nor restored through regulatory and nonregulatory restoration programs.\xe2\x80\x9d Id. at 16. More\nspecifically, though, the report indicated that most of the gains during the study period were\ndue to the restoration and creation of freshwater ponds through agricultural conservation\nprograms, and that the ponds \xe2\x80\x9cwould not be expected to provide the same range of wetland\nvalues and functions as a vegetated freshwater wetland.\xe2\x80\x9d Id. The authors of the study\nindicated, at the outset of the report, that \xe2\x80\x9c[o]n Earth Day 2004, President Bush announced\na wetlands initiative that established a federal policy beyond \xe2\x80\x9cno net loss\xe2\x80\x9d of wetlands,\n[which] ... seeks to attain an overall increase in the quality and quantity of wetlands [and\nthat] ... [t]he President set a goal of restoring, improving and protecting more than 3 million\nacres ... in five years.\xe2\x80\x9d Id. at 15. The authors indicated that the report provided some data\nregarding the progress being made to meet the goals regarding the increase in quantity of\nwetlands, but that the report did \xe2\x80\x9cnot assess the quality or condition of the nation\xe2\x80\x99s\nwetlands.\xe2\x80\x9d Id. Indeed, none of the previous reports assessed the quality or condition of the\nwetlands either. All of the reports focused simply on the quantity of wetland acreage lost.\nIn the most recent study of wetland status and trends, the Fish and Wildlife Service found\nthat there was a small, but statistically insignificant, difference between wetland acreage in\nthe conterminous United States between 2004 and 2009, with overall acreage declining by\n62,300 acres (or 13,800 acres per year over the 4.5 year study period).\xe2\x80\x9d Dahl, T.E., U.S.\nDepartment of the Interior, U.S. Fish and Wildlife Service, Status and Trends of Wetlands in\nthe Conterminous United States: 2004 to 2009 15-16 (2011). As in several previous\nstudies, ninety-five percent of the wetlands identified were freshwater wetlands and five\n18\n\n\x0cpercent were marine or estuarine wetlands. Id. at 16. Freshwater pond acreage continued\nto grow, although more slowly than in the prior report, and forested wetlands \xe2\x80\x9csustained\ntheir largest losses since the 1974 to 1985 time period.\xe2\x80\x9d Id. at 16. While the authors\nindicated that the report did not draw conclusions regarding trends in the quality or\ncondition of wetlands, they wrote, \xe2\x80\x9cThe cumulative effects of losses in the freshwater\nsystem have had consequences for hydrologic and ecosystem connectivity. In certain\nregions, profound reductions in wetland extent have resulted in habitat loss, fragmentation,\nand limited opportunities for reestablishment and watershed rehabilitation.\xe2\x80\x9d Id.\nAlthough the rate of wetland loss in the conterminous United States may have leveled off,\nin some regions, the rate of wetland loss continues to increase. In addition to the reports\nthat focus on wetland acreage in the conterminous United States, the Fish and Wildlife\nService has partnered with the National Oceanic and Atmospheric Administration to\nexamine wetland trends in coastal watersheds. Significantly, the agencies found that,\nduring the 1998-2004 time period, the coastal watersheds of the eastern United States lost\nabout 59,000 acres of wetlands each year, at a time when the Fish and Wildlife Service\nstudy above was indicating that there was an overall net increase of 32,000 acres of\nwetlands per year. See Stedman, S. & T.E. Dahl, National Oceanic and Atmospheric\nAdministration, National Marine Fisheries Service and U.S. Department of the Interior, Fish\nand Wildlife Service, Status and Trends of Wetlands in the Coastal Watersheds of the\nEastern United States: 1998 to 2004 5 (2008). In a more recent report, the agencies\nconcluded that wetland acreage in the coastal watersheds of the United States declined by\n360,720 acres between 2004 and 2009, for an average loss of 80,160 acres per year. See\nStedman, S. & T.E. Dahl, National Oceanic and Atmospheric Administration, National\nMarine Fisheries Service and U.S. Department of the Interior, Fish and Wildlife Service,\nStatus and Trends of Wetlands in the Coastal Watersheds of the Conterminous United\nStates: 2004 to 2009 2 (2013). That represented a 25% increase in the rate of wetland loss\nwhen compared to data for the region between 1998 and 2004. Id. The greatest losses in\nacreage are occurring in the Gulf of Mexico and Atlantic regions, with smaller losses along\nthe Pacific coast and net gains in the Great Lakes region. Id. at 20. The authors of the\nreport noted that \xe2\x80\x9cwetland reestablishment in coastal watersheds has lagged behind\nreestablishment rates observed nationally [and that] ... [a] strategy of achieving \xe2\x80\x9cno net\nloss\xe2\x80\x9d by offsetting wetland acreage losses with wetland creation or reestablishment does\nnot appear to be effective in the coastal watersheds as wetland losses have increased in\nsome coastal regions.\xe2\x80\x9d Id. at 3.\n\nQuestions and Comments\n1.\n\nNo net loss ...: In 1987, the Conservation Foundation convened a National\nWetlands Policy Forum, which developed a set of consensus recommendations on\nprotecting and managing wetlands. One of the recommendations was that the\nnational policy be guided by a goal of \xe2\x80\x9cno overall net loss\xe2\x80\x9d of the nation\xe2\x80\x99s wetlands\nand a long-term goal to increase the quantity and quality of the nation\xe2\x80\x99s wetlands.\n19\n\n\x0cSee Julie M. Sibbing, National Wildlife Federation, Nowhere Near No Net Loss.\nPresident George H.W. Bush endorsed the policy of \xe2\x80\x9cno net loss\xe2\x80\x9d of wetlands in\n1989 and Presidents Clinton and George W. Bush endorsed the policy and\nexpanded it in their administrations to achieve increases in wetland acreage. Note,\nthough, that \xe2\x80\x9cno net loss\xe2\x80\x9d focuses not just on loss of acreage of wetlands, but on\nloss of the quality of wetlands - the values and functions. Why have most of the\nfederal government studies focused solely on wetland acreage? EPA and the Fish\nand Wildlife Service recently completed a National Wetland Condition Assessment\nto determine the quality of our nation\xe2\x80\x99s wetlands. See U.S. Environmental Protection\nAgency, National Wetland Condition Assessment. Will this tool help the agencies\ndetermine whether the quality of the nation\xe2\x80\x99s wetlands has degraded in the last 50100 years? The next 50-100 years?\n2.\n\nThe 2005 Fish and Wildlife report indicated that net wetland acreage in the United\nStates had increased between 1998 and 2004. Much of the net growth was\nattributable to projects to create or restore ponds and other wetlands on agricultural\nlands. Should the increase in acreage be viewed as a success? When compared to\nthe values and functions provided by the wetlands lost? When compared to the\nlosses of other types of wetlands, such as coastal wetlands, where restoration\nprojects did not outpace conversion projects?\n\n3.\n\nMission Accomplished?: In 2008, President George W. Bush released a report\nindicating that more than 3.6 million acres of wetlands had been restored, protected\nor preserved as part of an initiative that he announced in 2004 to create, improve or\nprotect at least 3 million acres of wetlands by 2009. See Office of the President,\nCouncil on Environmental Quality, Conserving America\xe2\x80\x99s Wetlands 2008: Four\nYears of Progress Implementing the President\xe2\x80\x99s Goal (April 2008). Environmental\ngroups criticized the report because it did not quantify wetland losses during the\ncorresponding period, or indicate whether the actions resulted in any net gain of\nacreage, let alone values or functions.\n\n4.\n\nThe Natural Resources Conservation Service (NRCS), within the U.S. Department\nof Agriculture, also collects and analyzes data relating to wetland acreage as part of\nits National Resources Inventory. See U.S. Department of Agriculture, Natural\nResources Conservation Service, National Resources Inventory. It relies on the\nsame classification system for wetlands as the Fish and Wildlife Service, but the\nstudy only examines resources on non-federal land in the conterminous United\nStates. See U.S. Department of Agriculture, Natural Resources Conservation\nService, 2007 Natural Resources Inventory: Wetlands 1 (2013). In addition, the\nstudy periods are different from the study periods used by the Fish and Wildlife\nService. Id. Consequently, it is difficult to compare the data from the NRCS and\nFWS studies. NRCS did, however, find net increases in wetland acreage between\n1997 and 2002, and between 2002 and 2007. Id. at 5.\n20\n\n\x0c5.\n\nIt is estimated that 75% of the remaining wetlands in the lower 48 states are on\nprivate lands. See U.S. Environmental Protection Agency, Wetlands Protection:\nPartnering with Land Trusts. What impacts might that have for regulatory and\nlegislative policy-making?\n\nIV.\n\nWetland Delineation\n\nWhile Part II of this chapter focused on the classification systems that are used to\ncategorize wetlands, this part examines the \xe2\x80\x9cdelineation\xe2\x80\x9d process that is used to determine\nwhether property is a wetland and to determine the physical boundaries of wetlands. With\nthe exception of the Natural Resources Conservation Service, the federal agencies that\nregulate wetlands follow procedures in a 1987 technical manual developed by the Army\nCorps of Engineers to delineate wetlands. See U.S. Army Corps of Engineers, Wetlands\nResearch Technical Report Y-87-1, Corps of Engineers Wetlands Delineation Manual\n(1987) [hereinafter \xe2\x80\x9c1987 Corps Delineation Manual\xe2\x80\x9d].\nThe agencies focus on three characteristics of wetlands to determine whether property is a\nwetland - vegetation, soils and hydrology. Id. \xc2\xb6 26(b). Except when an area has been\naltered or in a few other unusual circumstances, positive indicators of all three\ncharacteristics must be present for an area to be delineated as a wetland. Id. \xc2\xb6 26(c). Thus,\nan area that has wetland vegetation and wetland hydrology, but not wetland soils, will\nnormally not be a wetland. Since vegetation, soils and hydrology differ throughout the\ncountry, the Corps has also developed supplements to the 1987 delineation manual that\nprovide guidance on delineating wetlands in 10 different geographic regions. See U.S.\nArmy Corps of Engineers, Regional Supplements to the Corps Delineation Manual.\nVegetation\nWetlands are areas where the prevalent vegetation is hydrophytic vegetation (species that\nhave the ability to grow, effectively compete, reproduce and/or persist in anaerobic soil\nconditions). See 1987 Corps Delineation Manual \xc2\xb6\xc2\xb6 26(b)(1). The Fish and Wildlife Service\npublishes a list of hydrophytic vegetation that is used in making this determination. See\nU.S. Department of the Interior, U.S. Fish and Wildlife Service, 2014 National Wetland\nPlant List. Generally, this criterion is met if more than 50% of the dominant plant species in\nthe area are hydrophytic (categorized as obligate wetland plants, facultative wetland plants\nor facultative plants on the National Wetland Plant list). See 1987 Corps Delineation\nManual \xc2\xb6\xc2\xb6 35(a). In addition, identification of trees with shallow root systems, swollen\ntrunks or roots growing from the plant stem or trunk above the soil surface may sometimes\nindicate that the vegetation criterion is satisfied. See U.S. Army Corps of Engineers,\nRecognizing Wetlands.\n\n21\n\n\x0cSoils\nAreas meet the criterion for wetland soils if the soils in the area are\nhydric soils (i.e., \xe2\x80\x9chave characteristics that indicate that they were\ndeveloped in conditions where soil oxygen is limited by the presence of\nsaturated soil for long periods during the growing season.\xe2\x80\x9d) See U.S.\nArmy Corps of Engineers, Recognizing Wetlands. The Natural\nResources Conservation Service maintains a list of hydric soils, see U.S.\nDepartment of Agriculture, Natural Resources Conservation Service,\nSoil Taxonomy (2d ed. 1999), and soil types can usually be identified by\ncomparing soil colors at various depths to soil charts. See Munsell Color,\nMunsell Soil Color Charts. Since hydric soils can\nPhoto 9 NRCS Photo By Bob Nichols\nhttp://commons.wikimedia.org/wiki/File:NRCSNE00023_remain in an area even after the area no longer\n_Nebraska_(5167)(NRCS_Photo_Gallery).jpg\nexhibits wetland hydrology or vegetation,\nthough, soils are considered less reliable\nindicators than the other two criterion. See Mark A. Chertok & Kate Sinding, Federal\nJurisdiction over Wetlands: \xe2\x80\x9cWaters of the United States\xe2\x80\x9d, in Wetlands Law and Policy 87\n(Section of Environment, Energy and Resources, American Bar Association, 2005).\nHydrology\nAreas meet the criterion for hydrology if they \xe2\x80\x9care periodically inundated or have soils\nsaturated to the surface at some time during the growing season.\xe2\x80\x9d See 1987 Corps\nDelineation Manual \xc2\xb6\xc2\xb6 46. The Corps provides the following helpful definition in an\ninformation pamphlet on recognizing wetlands, \xe2\x80\x9cwetland hydrology refers to the presence of\nwater at or above the soil surface for a sufficient period of the year to significantly influence\nthe plant types and soils that occur in the area.\xe2\x80\x9d See U.S. Army Corps of Engineers,\nRecognizing Wetlands. Normally, areas must be inundated for at least a week during the\ngrowing season to meet the hydrology criterion. See Chertok & Sinding, supra, at 87.\nInundation or saturation can be demonstrated by visual observation or recorded data, such\nas stream gage data, lake gage data, flood predictions and historical data. See 1987 Corps\nDelineation Manual \xc2\xb6\xc2\xb6 49. In addition to those methods, the hydrology criterion may be\nsatisfied through observation of drift lines, sediment deposits, drainage patterns, or\nwatermarks on vegetation. Id. Many of those indicators, though, do not reveal the\nfrequency, timing or duration of flooding or the soil saturation. See U.S. Army Corps of\nEngineers, Recognizing Wetlands. While hydrology \xe2\x80\x9cis often the least exact\xe2\x80\x9d of the criterion,\n\xe2\x80\x9cit is essential to establish that a wetland area is periodically inundated or has saturated\nsoils during the growing season.\xe2\x80\x9d See 1987 Corps Delineation Manual \xc2\xb6\xc2\xb6 46.\n\n22\n\n\x0cInterviews\nJan Goldman Carter, Senior Manager and Counsel for the National Wildlife\nFederation\xe2\x80\x99s Wetlands and Water Resources Program, discusses:\n1\n\nThe value of a scientific background for a career in environmental law.\n(You Tube)\n\n2.\n\nThe judicial and legislative understanding of, and receptivity to, scientific\nissues involving wetlands. (YouTube)\n\nStephen Samuels, an Assistant Section Chief in the Environmental Defense\nSection of the Environment and Natural Resources Division of the U.S.\nDepartment of Justice, discusses the challenge of influencing courts and\nlegislatures with scientific information on the values and functions of wetlands.\n(YouTube)\n\nRESOURCES\nCorps of Engineers Video on Delineating Wetlands\nDNREC (Delaware) Video on Wetlands and Identifying Wetlands\n1987 Corps Delineation Manual & Regional Supplements (Map of regions for suppl.)\nField Evaluation Questionnaire used by Corps in delineating wetlands\nNational Food Security Act Manual (includes NRCS delineation procedures)\nNational Wetlands Inventory by Fish and Wildlife Service\nNational Wetlands Inventory - Mapping Utility (Search for Wetlands)\nLoria A. Sutter, Royal C. Gardner, James E. Perry, Science and Policy of U.S. Wetlands, 29\nTul. Envt\xe2\x80\x99l L. J. 31 (2015)\n\n23\n\n\x0cResearch Problems\n1. Agency Reports: While federal law requires agencies to publish rules and various\nadjudicative decisions and guidance documents in the Federal Register, see Chapter\n3, infra, agencies are generally not required to publish reports that they produce in any\nspecific format. However, most agencies make significant reports that they produce\navailable on the agency\xe2\x80\x99s website. See if you can locate a report issued by the United\nStates Fish and Wildlife Service entitled \xe2\x80\x9cStatus and Trends of Wetlands in the\nCoastal Watersheds of the Conterminous United States 2004 to 2009". According to\nthe report, in 2009, there were an estimated 41.1 million acres of wetlands in the\ncoastal watersheds of the United States.\na.\nb.\nc.\n\nWhat percentage of those wetlands were freshwater wetlands?\nWhat percentage of those wetlands were saltwater wetlands?\nWhich coastal region experienced a new gain in wetland acreage\nbetween 2004 and 2009?\n\n2. Guidance documents: Although a few agency guidance documents are published\nin the Federal Register, most are not. However, agencies publish frequently requested\nguidance documents on their websites. If guidance documents are not available on\nthe agency\xe2\x80\x99s website, interested persons normally have to contact the agency to\nrequest a copy of the guidance document (if they know that the guidance document\nexists). See if you can locate the Regional Supplement to the Corps of Engineers\nWetland Delineation Manual that would apply to property located in New York State.\nWhich section of the Corps\xe2\x80\x99 1987 Delineation Manual is replaced, for that Region, by\nChapter 2 of the Regional Supplement?\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 1, why not try a CALI lesson on the material at:\nhttp://cca.li/PQ. It should only take about fifteen minutes.\n\n24\n\n\x0cChapter 2\nThe History of Regulation\nI.\n\nEarly Development Laws\n\nSentiments toward wetlands have evolved significantly over\nthe history of our nation, and wetlands laws have evolved\nsignificantly as well. For much of the eighteenth and nineteenth\ncenturies, public sentiment and legislation favored the draining\nand conversion of wetlands. They were long considered\n\xe2\x80\x9cinsect-ridden, unattractive, and dangerous\xe2\x80\x9d places. See\nWilliam A. Niering, Wetlands 19 (Chanticleer Press, 1985). In\n1732, William Byrd II, the founder of Richmond, Virginia,\ndescribed the Great Dismal Swamp (now a national wildlife\nrefuge) as \xe2\x80\x9ca vast body of mire and nastiness.\xe2\x80\x9d See U.S.\nDepartment of Interior, U.S. Fish and Wildlife Service, The\nGreat Dismal Swamp and the Underground Railroad. Thirty\nyears later, George Washington joined several partners to form\n\xe2\x80\x9cAdventurers for Draining the Dismal Swamp\xe2\x80\x9d and the Virginia Photo 10 USFWS Photo by S.\nGeneral Assembly authorized their company to harvest the Bournique\ntimber and drain much of the swamp, which extended over http://commons.wikimedia.or\n2,000 square miles at the time. See The Diaries of George g/wiki/File:Great_dismal_swa\nWashington, Vol. 1: 11 March 1748 \xe2\x80\x93 13 November 1765, at mp.jpg\n319-320 (ed. Donald Jackson. Charlottesville: University Press of Virginia, 1976).\nTo the extent that Congress legislated in the area of natural resources in the eighteenth\nand nineteenth centuries, laws such as the Homestead Act of 1862, Act of May 20, 1862,\nPub. L. 37-62, 12 Stat. 392 (which required the \xe2\x80\x9cimprovement\xe2\x80\x9d of homesteads), and the\nGeneral Mining Act of 1872, 30 U.S.C. \xc2\xa7\xc2\xa7 22-47, focused on encouraging the settlement of\nthe country and the exploitation of natural resources, as opposed to protecting and\nconserving resources. Federal laws regarding wetlands at the time were no different. The\nSwamp Wetland Act of 1849, 9 Stat. 352 (1849), granted to Louisiana all of the swamp\nlands in the State that were not suitable for cultivation, so that the State could build levees\nand drains to \xe2\x80\x9creclaim\xe2\x80\x9d the wetlands. See Shaw, Samuel P. and C. Gordon Fredine, U.S.\nDepartment of the Interior, Circular 39 Wetlands of the United States - Their Extent and\nTheir Value to Waterfowl and Other Wildlife (1956) [hereinafter \xe2\x80\x9cUSGS, Wetlands of the\nUnited States\xe2\x80\x9d]. The Swamp Wetland Act of 1850, 9 Stat. 519 (1850), granted the swamp\n25\n\n\x0clands in 12 other states (Alabama, Arkansas, California, Florida, Illinois, Indiana, Iowa,\nMichigan, Mississippi, Missouri, Ohio, and Wisconsin) to those states for similar purposes.\nSee USGS, Wetlands of the United States. In 1860, Congress extended the provisions of\nthose laws to cover the wetlands in Minnesota and Oregon. Id. Through those laws, almost\n65 million acres of wetlands were given to the States. Id. The States sold or gave away\nmost of those wetlands to local governments or developers, and now most are in private\nhands. Id. Most of the wetlands that were destroyed over the first two centuries of our\nnation were converted to agricultural lands, usually by private landowners. See National\nResearch Council. Wetlands: Characteristics and Boundaries 17 (Washington, DC: The\nNational Academies Press, 1995).\nAt the end of the nineteenth century, Congress passed the Rivers and Harbors\nAppropriations Act of 1899, see 33 U.S.C. \xc2\xa7 401, et. seq., a law that would eventually\nplay a role in limiting the destruction and conversion of wetlands. See Chapters 4 and 6,\ninfra. However, the primary focus of that law is on protecting the navigability of the nation\xe2\x80\x99s\nwaters and protecting interstate commerce, which is often accomplished through dredging\nor the construction of channels. While the law includes provisions that limit obstructions in\nnavigable waters, see 33 U.S.C. \xc2\xa7 403, and prohibits the deposit of refuse in navigable\nwaters, see 33 U.S.C. \xc2\xa7 407, it was almost three quarters of a century after the law was\nenacted before courts upheld the government\xe2\x80\x99s authority to prohibit obstruction activities in\nwetlands for environmental reasons under the law. See Zabel v. Tabb, 430 F.2d 199 (5th\nCir. 1970). Thus, at the time, enactment of the law did not signal a significant shift in the\ncongressional policy or attitude toward wetlands.\nThe prevailing sentiment towards wetlands at the turn of the twentieth century was probably\nexpressed most clearly in the Supreme Court\xe2\x80\x99s 1900 decision in Leovy v. United States,\nwhen Justice Shiras, for the Court, wrote:\nIf there is any fact which may be supposed to be known by everybody, and therefore\nby courts, it is that swamps and stagnant waters are the cause of malarial and\nmalignant fevers, and that the police power is never more legitimately exercised than in\nremoving such nuisances.\n177 U.S. 621, 636 (1900). The Court also noted that converting the wetlands in the case to\nagricultural use increased the value of the land from $5,000 to $100,000 and could possibly\nincrease the value to $300,000. Id. at 627.\n\nII.\n\nA Slow Shift to Conservation\n\nAlthough large segments of the public and policymakers adopted views similar to those\nexpressed by the Court, the turn of the twentieth century also witnessed the birth of a\nnational conservation movement. In 1903, by Executive Order, President Theodore\n26\n\n\x0cRoosevelt established the country\xe2\x80\x99s first National Wildlife Refuge, Pelican Island National\nWildlife Refuge, in south Florida. See U.S. Department of the Interior, U.S. Fish and Wildlife\nService, Short History of the Refuge System: The Early Years (1864-1920). While the\nPelican Island Refuge was the first National Wildlife Refuge, federal and state governments\nand private organizations had already begun to acquire wetlands to establish wildlife\nsanctuaries in the late nineteenth century. See National Research Council. Wetlands:\nCharacteristics and Boundaries 45 (Washington, DC: The National Academies Press,\n1995). In the six years after he established the Pelican Island National Wildlife Refuge,\nPresident Roosevelt issued 51 additional Executive Orders that established wildlife\nreservations in 17 States. Id. As it approached its centennial, the National Wildlife Refuge\nSystem included more than 520 units in all 50 states, covering 93 million acres of wildlife\nhabitat. See U.S. Department of the Interior, U.S. Fish and Wildlife Service, Short History of\nthe Refuge System: Approaching the Centennial (1997 and On). For an in-depth history of\nthe National Wildlife Refuge System, see Robert L. Fischman, The National Wildlife Refuge\nSystem and the Hallmarks of Modern Organic Legislation, 29 Ecology L. Quarterly 457\n(2002).\nA few years after President Roosevelt left office, in 1913, Congress enacted the WeeksMcLean Act, Ch. 145, 37 Stat. 828, 847 (1913), to prohibit the commercial hunting and\nshipment of migratory birds across state lines. The law, which was enacted as a rider to\nappropriations legislation, was held unconstitutional as violating the Tenth Amendment, but\nwas replaced a few years later by the Migratory Bird Treaty Act of 1918, 16 U.S.C. \xc2\xa7 703,\net seq., which prohibits hunting, capturing, possessing, selling and many other activities\nwith regard to migratory birds that are protected by an international migratory bird treaty.\nAlthough those laws were not enacted to provide protection to wetlands, they demonstrated\nCongress\xe2\x80\x99 concern with protecting migratory birds, and that concern would eventually lead\nto further legislation to protect the habitat, including wetlands habitat, of those birds.\nTwo of the earliest federal wetland conservation\nlaws were the Migratory Bird Conservation Act of\n1929, 16 U.S.C. \xc2\xa7\xc2\xa7 715-715d, 715e, 715f-715r,\nwhich authorized, but did not permanently fund, the\nacquisition and preservation of wetlands as habitat\nfor waterfowl, and the Migratory Bird Hunting\nStamp Act of 1934, 16 U.S.C. \xc2\xa7\xc2\xa7 718 - 718j\n(generally referred to as \xe2\x80\x9cThe Duck Stamp Act\xe2\x80\x9d),\nwhich created a funding source for the wetlands\nconservation authorized by the 1929 law. See U.S.\nDepartment of the Interior, U.S. Fish and Wildlife\nService, Federal Duck Stamp Office, History of the\nPhoto 11 Public Domain Photo\nhttp://commons.wikimedia.org/wiki/File: Federal Duck Stamp Duck Stamps are pictorial\nDuck_stamp.jpg\nstamps that are produced by the Fish and Wildlife\nService which were originally created as federal licenses to hunt migratory waterfowl. Id.\n27\n\n\x0cToday, Duck Stamps also serve as entry passes to National Wildlife Refuges and many\npeople buy Duck Stamps simply to promote wetland conservation, as ninety-eight cents out\nof every dollar from the sale of Duck stamps is used to purchase or lease wetland habitat\nfor National Wildlife Refuges. Id. Since 1934, the Fish and Wildlife Service has raised more\nthan 800 million dollars from the sale of Duck Stamps and has purchased or leased more\nthan 6 million acres of wetlands with those proceeds. Id.\nAlthough Congress created the Duck Stamp program in 1934 to fund federal acquisition\nand protection of wetlands, between 1940 and 1977, the U.S. Department of Agriculture\nprovided technical information and cost-sharing, through its Agricultural Conservation\nProgram, to assist landowners in draining wetlands. See U.S. Congress, Office of\nTechnology Assessment, OTA-O-206, Wetlands: Their Use and Regulation 77 (Mar. 1984).\n\nIII.\n\nTowards Comprehensive Federal Regulation\n\nAs was the case with most environmental issues, though, federal regulatory involvement in\nwetlands protection grew during the end of the 1960s and throughout the 1970s. At first,\nCongress and the Corps strengthened the wetland protections in the Rivers and Harbors\nAct. In 1965, Congress amended the Fish and Wildlife Coordination Act to require\nagencies to consider opportunities for fish and wildlife enhancement when planning any\nnavigation, flood control, reclamation, hydroelectric or multipurpose water resource project.\nSee Pub. L. 89-72, 79 Stat. 213 (1965). After that, the Corps entered into an agreement\nwith the Fish and Wildlife Service to consult on projects that the Corps would review for\nauthorization under the Rivers and Harbors Act. See Memorandum of Understanding\nBetween the Secretary of the Interior and the Secretary of the Army (July 13, 1967).\nAround the same time, the Corps adopted regulations to incorporate a \xe2\x80\x9cpublic interest\xe2\x80\x9d\nreview, including a focus on environmental factors, into the Rivers and Harbors Act\npermitting program. See 33 Fed. Reg. 18670 (Dec. 18, 1968). While these changes\nprovided some additional protection for wetlands, the Rivers and Harbors Act only\nregulates activities in waters that are, were historically, or could potentially be, navigable,\nsee Chapter 4, infra, so the Corps\xe2\x80\x99 jurisdiction over wetlands under the Act is fairly narrow.\nInstead, most federal regulation of wetlands derives from the Federal Water Pollution\nControl Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 816 (1972), which, after\nsubsequent amendments, is commonly known as the Clean Water Act. The statute\nprohibits the addition of pollutants into navigable waters, a term that has been interpreted\nby the government and courts to include wetlands. See Chapter 4, infra. However, Section\n404 of the statute authorizes the Corps of Engineers to issue permits to authorize the\ndischarge of dredged or fill material into navigable waters. See 33 U.S.C. \xc2\xa7 1344. While the\nEndangered Species Act and the National Environmental Policy Act play a role in\nprotecting wetlands, as discussed later, the Clean Water Act Section 404 permitting\nprogram is the primary federal tool for regulating and protecting wetlands and most of this\nbook focuses on that program. Although the statute authorizes the Corps to issue the\n28\n\n\x0cpermits, Congress gave EPA the authority, with the Corps, to develop the guidelines that\nthe Corps uses to determine whether to issue the permits. See 33 U.S.C. \xc2\xa7 1344(b)(1). The\nstatute also authorizes EPA and the Fish and Wildlife Service to comment on permit\napplications, and authorizes EPA to veto Section 404 permits. See 33 U.S.C. \xc2\xa7 1344(c).\nThe division of authority between EPA and the Corps has created some tension over the\nyears.\nIn the first few years after Congress created the Section 404 permit program, the Corps of\nEngineers interpreted the Clean Water Act narrowly to provide limited jurisdiction over\nwetlands. See Chapter 4, infra. By 1975, however, the Corps had adopted a more\nexpansive reading of the statute. Id. Since those early years of the Section 404 program,\nseveral Presidents have issued Executive Orders, adopted action plans or announced\npolicies to expand protection of wetlands.\nIn 1977, President Carter issued Executive Order 11990, which required federal agencies\nto \xe2\x80\x9ctake action to minimize the destruction, loss or degradation of wetlands, and to preserve\nand enhance the natural and beneficial values of wetlands.\xe2\x80\x9d See Executive Order 11990,\nProtection of Wetlands \xc2\xa7 1 (May 24, 1977). Significantly, the order also required agencies\nto \xe2\x80\x9cavoid undertaking or providing assistance for new construction located in wetlands\nunless the ... agency finds (1) that there is no practicable alternative to such construction,\nand (2) that the proposed action includes all practicable measures to minimize harm to\nwetlands which may result from such use.\xe2\x80\x9d Id. \xc2\xa7 2. A little over a decade later, in 1988,\nPresident George H.W. Bush endorsed a policy, which was developed by a National\nWetlands Policy Forum, of \xe2\x80\x9cno net loss\xe2\x80\x9d of wetlands. See Julie M. Sibbing, National Wildlife\nFederation, Nowhere Near No Net Loss. After President Clinton took office, through a 1993\nInteragency Wetlands Plan, he reaffirmed the \xe2\x80\x9cno net loss\xe2\x80\x9d policy as an interim goal and\ncalled for an increase in the quality and quantity of the nation\xe2\x80\x99s wetlands as a long term\ngoal. See White House Office on Environmental Policy, Protecting America\xe2\x80\x99s Wetlands: A\nFair, Flexible, and Effective Approach (Aug. 24, 1993). A decade after that, on Earth Day,\n2004, President George W. Bush announced a Strategy to Increase Wetland Acres and\nQuality, which focused on moving from a \xe2\x80\x9cno net loss\xe2\x80\x9d policy to an increase in wetland\nacres and quality. See The White House, Office of the Press Secretary, Wetlands Initiative\nAnnounced on Earth Day (April 22, 2004).\n\n29\n\n\x0cPhoto 12 Screen Shot of NWI website \xe2\x80\x93 July 2014\n\nFor several decades, the National Wetlands Inventory has played an important role in\nproviding information about whether the \xe2\x80\x9cno net loss\xe2\x80\x9d goal is being met, at least with regard\nto wetland acreage. The Fish and Wildlife Service began work on the national inventory of\nwetlands in 1974 \xe2\x80\x9cto provide biologists and others with information on the distribution and\ntype of wetlands and to aid in conservation efforts.\xe2\x80\x9d See U.S. Department of the Interior,\nU.S. Fish and Wildlife Service, NWI Overview. The agency developed the Cowardin\nwetland classification system described in Chapter 1, supra, to classify wetlands for the\ninventory. Id. While wetlands in the National Wetlands Inventory were originally plotted on\npaper maps, the wetlands data in the inventory is now accessible and searchable online in\ndigital maps. Id. The data are also used to prepare the Service\xe2\x80\x99s periodic reports on\nwetland status and trends discussed in Chapter 1. Id. Congress required the agency to\nprepare those periodic reports as part of the Emergency Wetlands Resources Act of\n1986, 16 U.S.C. \xc2\xa7\xc2\xa7 3901-3932.\n\nIV.\n\nConservation Programs and Agricultural Programs\n\nWhile the Clean Water Act Section 404 program ushered in an era of comprehensive\nfederal regulation, the federal government also provides protection for wetlands through a\n30\n\n\x0cvariety of economic incentive programs. Some of the programs have been in place for\nseveral decades. For instance, in 1965, Congress passed the Land and Water\nConservation Fund Act of 1965, creating a Land and Water Conservation Fund, which\nprovides money to federal, state and local governments to purchase property, including\nwetlands, for conservation and to fund conservation projects. See 16 U.S.C. \xc2\xa7\xc2\xa7 4601-4 4601-11. Through 2014, the Fund provided $4 billion in grants to States to fund more than\n42,000 conservation projects. See Land and Water Conservation Fund Coalition, 50 Years\nof Conserving America the Beautiful 6 (2014).\nIn 1970, Congress passed the Water Bank Act, which authorizes the Departments of\nAgriculture and Interior to enter into 10 year contracts with landowners to preserve\nwetlands on their land and protect wildlife habitat. See 16 U.S.C. \xc2\xa7\xc2\xa7 1301-1311. In return,\nthe landowners receive annual payments over the contract period. Id. In Fiscal Year 2012,\nCongress appropriated $7.5 million to fund the Water Bank Program. See U.S. Department\nof Agriculture, Natural Resources Conservation Service, Water Bank Program.\nFrom those modest beginnings, Congress greatly expanded the number and scope of\nfederal programs that provide economic incentives for wetland protection shortly after the\nrelease of a report by the Congressional Office of Technology Assessment (\xe2\x80\x9cOTA\xe2\x80\x9d) that\nidentified several federal laws and programs that impeded wetlands protection. See U.S.\nCongress, Office of Technology Assessment, OTA-O-206, Wetlands: Their Use and\nRegulation 78 (Mar. 1984). The report noted that the Federal tax code provided numerous\ndeductions that gave farmers incentives to clear and drain wetlands for agricultural use. Id.\nThe report also concluded that several other federal programs, including cost sharing and\ntechnical assistance in the U.S. Department of Agriculture\xe2\x80\x99s Agricultural Conservation\nProgram, Farmers Home Administration Loans, Federal disaster payments and crop\ninsurance, and commodity programs provided incentives to farmers to clear and drain\nwetlands. Id. at 78-81.\nIn 1985, the year after the OTA report, Congress included several important provisions in\nthe Food Security Act of 1985 (also known as the 1985 Farm Bill) to protect wetlands. See\nPub. L. 99-198, 99 Stat. 1509 (1985). The law created a Conservation Reserve Program,\nwhich provides yearly rental payments to farmers (owners of highly erodible cropland) who\nagree to remove their land from agricultural production for 10 - 15 years and to plant\nvegetation that will improve the environmental health and quality of their land. Id. \xc2\xa7 1231.\nThe program is administered by the Farm Service Agency within the U.S. Department of\nAgriculture. See U.S. Department of Agriculture, Farm Service Agency, Conservation\nPrograms: Conservation Reserve Program. Since 1988, restoration of cropped wetlands is\none of the activities that is eligible for program participation. Although the original law\nauthorized enrollment of up to 45 million acres of highly erodible land in the reserve, that\nlimit was reduced to 39 million acres in the 2002 Farm Bill and 32 million acres in the 2008\nFarm Bill. The program provides about $2 billion to farmers each year and, as of 2012, the\nprogram restored over 2 million acres of wetlands and reduced soil erosion by more than\n31\n\n\x0c300 million tons per year. See U.S. Department of Agriculture, Farm Service Agency, The\nConservation Reserve Program: 45th Signup Results (Sept. 2013).\nPerhaps the more significant provisions in the 1985 Farm Bill, though, were the\nSwampbuster provisions. Congress included provisions in the law that disqualified farmers\nfrom receiving all or a portion of Federal farm program benefits, including loans, subsidies,\ncrop insurance, and price supports, if they produced agricultural commodities on converted\nwetlands. See 16 U.S.C. \xc2\xa7 3821. The Swampbuster provisions were strengthened in the\nFood Agriculture, Conservation and Trade Act of 1990 (also known as the 1990 Farm Bill),\nwhich disqualifies farmers from receiving those benefits if they convert wetlands for the\npurpose of, or with the effect of, making production of agricultural commodities on them\npossible. See 16 U.S.C. \xc2\xa7 3821(c). As noted in Chapters 1, supra, and 4, infra, the Natural\nResources Conservation Service delineates wetlands for purposes of the Swampbuster\nprovisions, see 28 U.S.C. \xc2\xa7 3822, and uses a different delineation manual than the manual\nused by the Corps of Engineers, EPA and the Department of Interior. While the Natural\nResources Conservation Service and the Farm Service Agency administer the\nSwampbuster provisions, the Fish and Wildlife Service, within the Department of Interior,\nprovides technical assistance to those agencies, and their relationship in administering the\nlaw is outlined in a 2002 Memorandum of Understanding. See U.S. Department of\nAgriculture and U.S. Department of Interior, Memorandum of Understanding Regarding\nImplementation of the 2002 Farm Bill Conservation Provisions (Aug. 6, 2002).\nSubsequent farm bills created additional wetland conservation programs. For instance, the\n1990 Farm Bill created the Wetlands Reserve Program, which provided money and\ntechnical assistance to farmers and other landowners to protect, enhance and restore\nwetlands on their property. See 16 U.S.C. \xc2\xa7\xc2\xa7 3837 - 3837f. Landowners could enroll in the\nprogram by placing a permanent conservation easement or a 30 year conservation\neasement on their property, in which case they were fully or partially (for the 30 year\neasement) compensated for the value of the easement and received funding to cover the\nrestoration costs. Id. \xc2\xa7 3837a. If the landowners did not prefer to place a conservation\neasement on their property, they could still enroll their land in the program, but they only\nreceived funding to cover the restoration costs. Id. In the first twenty years of the program,\nwhich was administered by the Natural Resources Conservation Service (NRCS), more\nthan 11,000 landowners participated, enrolling more than 2.3 million acres of wetlands. See\nU.S. Department of Agriculture, Natural Resources Conservation Service, Restoring\nAmerica\xe2\x80\x99s Wetlands: A Private Lands Conservation Success Story. The program was\nreplaced, in the 2014 Farm Bill, by an Agricultural Conservation Easement Program,\nalso administered by NRCS, which includes a Wetland Reserve Easement program and an\nAgricultural Land Easement program. In the Wetland Reserve Easement program,\nlandowners place permanent easements, 30 year easements, or shorter term easements\non wetlands in exchange for compensation for the easement and funding to cover wetland\nrestoration costs. Id.\n\n32\n\n\x0cThe Federal Agricultural Improvement and Reform Act of 1996 (the 1996 Farm Bill or\nFreedom to Farm Act) created the Wildlife Habitat Incentive Program (WHIP) and the\nEnvironmental Quality Incentive Program (EQIP), both of which are administered by the\nNatural Resources Conservation Service. See Pub. L. 104-127, 100 Stat. 888 (1996). The\nWildlife Habitat Incentive Program provided funding and technical assistance to landowners\nto develop wildlife habitat on private agricultural land, nonindustrial private forest land, and\ntribal lands, see 16 U.S.C. 3839bb-1, but was not re-authorized when Congress enacted\nthe 2014 Farm Bill. The Environmental Quality Incentives Program provides financial and\ntechnical assistance to agricultural producers to plan and implement conservation practices\nand related projects. See 16 U.S.C. \xc2\xa7\xc2\xa7 3839aa - 3839aa-9. Landowners sign contracts for\na term between one and ten years. Id. \xc2\xa7 3839aa-2.\nCongress has also created other wetland conservation programs independent of farm bills.\nFor instance, the North American Wetlands Conservation Act of 1989 created a\nprogram to provide matching grants to organizations and individuals who are partnering to\ncarry out wetlands conservation projects in the U.S., Mexico, or Canada. See 16 U.S.C. \xc2\xa7\xc2\xa7\n4401 - 4414. Between 1990 and September, 2013, the program provided about $1.8 billion\nto more than 5,000 partners, who contributed about $2.68 billion in matching funds,\naffecting more than 27.5 million acres of habitat. See U.S. Department of the Interior, U.S.\nFish and Wildlife Service, Division of Bird Habitat Conservation, North American Wetlands\nConservation Act. Congress created another wetlands conservation grant program in the\nCoastal Wetlands Planning, Protection, and Restoration Act of 1990. The National Coastal\nWetlands Conservation Grant Program is administered by the Fish and Wildlife Service\nand provides grants to States and Territories to protect, restore, and enhance coastal\nhabitats. See 16 U.S.C. \xc2\xa7\xc2\xa7 3951 - 3956. From the time the program was created through\nearly 2013, about $183 million in grants were awarded to 25 States and one U.S. territory\nto acquire, restore or protect 250,000 acres of coastal wetland ecosystems. See U.S.\nDepartment of the Interior, U.S. Fish and Wildlife Service, National Coastal Wetlands\nConservation Grant Program. Finally, in 2006, Congress passed the Partners for Fish and\nWildlife Act, which creates a program to provide financial and technical assistance to\nlandowners and Tribes for projects in a variety of habitats to conserve or restore\nvegetation, hydrology and soils associated with imperiled ecosystems, including bottomland\nhardwoods, marshes, rivers, streams and a variety of other habitats, including ecosystems\nthat provide habitat for a rare, declining or protected species. See U.S. Department of the\nInterior, U.S. Fish and Wildlife Service, Partners for Fish and Wildlife Program. Between\n1987 and 2010, the program restored and enhanced over 1 million acres of wetlands. See\nU.S. Department of the Interior, U.S. Fish and Wildlife Service, Partners for Fish and\nWildlife Program: Regional Showcase Accomplishments: Fiscal Year 2010 at 2.\nThe following chart summarizes the variety of economic incentive programs for wetlands\nconservation:\n\n33\n\n\x0cProgram\n\nAgency\n\nRecipients\n\nType of\nAssistance\n\nRequirements\n\nConservation\nReserve\nProgram\n\nUSDA Farm\nService\nAgency\n\nFarmers\n\nRental payments\nfor 10-15 years\n\nRemove land from\nagricultural production\nand vegetate to improve\nthe environmental health\nand quality of the land\n\nEQIP\n\nUSDA \xe2\x80\x93\nNRCS\n\nAgricultural\nProducers\n\n$$$ and Technical\nAssistance\n\nPlan and implement\nconservation projects\nand related projects\n\nLand and\nWater\nConservation\nFund\n\nDOI National\nPark\nService\n\nFederal,\nState and\nLocal\nGovernments\n\n$$$\n\nConservation projects,\nincluding purchase of\nland for conservation\n\nNational\nCoastal\nWetlands\nConservation\nGrants\n\nDOI - FWS\n\nStates and\nTerritories\n\nGrants\n\nProtect, restore or\nenhance coastal habitats\n\nNorth\nAmerican\nWetlands\nConservation\nAct Grants\n\nDOI - FWS\n\nOrganizations\nand\nIndividuals\n\nGrants\n\nWetlands conservation\nprojects in the U.S.,\nMexico or Canada\n\nPartners for\nFish and\nWildlife\n\nDOI - FWS\n\nLandowners\nand Tribes\n\n$$$ and Technical\nAssistance\n\nConservation or\nrestoration of wetlands\nand other habitats\n\nWater Bank\nAct\n\nUSDA /\nDOI\n\nLandowners\n\nAnnual payments\nfor a 10 year term\n\nPreserve wetlands and\nprotect wildlife habitat\n\nWHIP\n(Eliminated in\n2014 Farm\nBill)\n\nUSDA \xe2\x80\x93\nNRCS\n\nLandowners:\nPrivate\nagricultural;\nPrivate\nforestland;\nTribal land\n\n$$$ and Technical\nAssistance\n\nDevelop wildlife habitat\non the land\n\nAgricultural\nConservation\nEasement\nProgram\n\nUSDA \xe2\x80\x93\nNRCS\n\nLandowners\nand Tribes\n\n$$$ and Technical\nAssistance\n\nProtect, enhance, or\nrestore wetlands and\nplace a conservation\neasement on the land\n\n34\n\n\x0cAdditional Resources\nUSDA Farm Service Agency Reports and Statistics\nUSDA NRCS Conservation Programs website\nUSDA NRCS Data and Reports and Data Mapper\nUSDA Video re: the History of the Conservation Reserve Program\nUSDA NRCS report re: WRP Successes\nUSDA NRCS Photo Gallery of WRP Restoration Projects\nLand and Water Conservation Fund - Find Grants in Your Community\n\nQuestions and Comments\n1.\n\nMultiple agencies: Why do you think that Congress divided responsibility for\nadministration of the Section 404 permit program between the Corps of Engineers\nand EPA in the manner that it did? What expertise and historical regulatory\nauthority did each have with regard to wetlands and water pollution? Does having\nregulation divided between the Corps and the EPA make effective regulation more\ndifficult? Should only one agency have authority over regulation? Which one? See\nAlyson C. Flournoy, Section 404 at Thirty-Something: A Program in Search of a\nPolicy, 55 Ala. L. Rev. 607 (2004); Sam Kalen, Commerce to Conservation: The Call\nfor a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands,\n69 N.D. L. Rev. 873 (1994); Michael C. Blumm and D. Bernard Zaleha, Federal\nWetlands Protection Under the Clean Water Act: Regulatory Ambivalence,\nIntergovernmental Tension , and a Call for Reform, 60 U. Colo. L. Rev. 695 (1989).\nThis division has created some tension, as will be explored in the chapters in this\nbook that address jurisdiction over waters of the United States, delineation,\nmitigation, and the EPA veto process, among others.\n\n2.\n\nAccess to information: The Department of Interior and the Department of\nAgriculture provide Internet access to significant amounts of data regarding their\nwetlands programs. For instance, the Department of Interior provides a user-friendly\nmapping interface for its National Wetlands Inventory and convenient access to\ninformation about grants provided through the Land and Water Conservation Fund.\nWho are some of the audiences that might use that information and how could it be\nused? To familiarize yourself with the tools, (a) find the wetlands that are located\nnear you and identify the type of wetlands; (b) find the most recent grant awarded by\nthe Land and Water Conservation Fund to a project in your community.\n\n3.\n\nSwampbuster exemptions: Although the Food Security Act disqualifies farmers\nfrom receiving various federal farm benefits or participating in various federal farm\nprograms if they produce agricultural commodities on converted wetlands, the\nstatute includes a grandfather provision that allows farming on wetlands that were\n35\n\n\x0cconverted (or the conversion was commenced) to cropland prior to December 23,\n1985 (the date of enactment of the law) as long as the wetlands did not exhibit\nwetlands characteristics after the conversion. 16 U.S.C. \xc2\xa7 3822(b)(1)(A). The\nexemption applies even if the converted cropland once again exhibits wetland\ncharacteristics due to various reasons outlined in the statute. Id. \xc2\xa7 3822(b)(1)(G).\nThe statute or agency regulations also exempt farmers from disqualification for\nfarming artificial wetlands, farming that does not destroy natural wetland\ncharacteristics or that has a minimal effect on wetland functions and values in the\narea, or farming where the farmer has acted in good faith and without intent to\nviolate the law. Id. \xc2\xa7 3822.\n4.\n\nVoluntary programs: What are some of the limitations to the effectiveness of\nvoluntary economic incentive programs as a tool to conserve and protect wetlands?\nIs there a national plan or are there regional plans that identify the ecosystems and\nresources to protect under the voluntary programs? Who determines which wetlands\nand resources should be protected, and on what criteria? How much wetland\nacreage can be protected under the programs? What factors limit the amount of\nacreage? Where does the money to protect the wetlands come from? Are there\nadvantages to conservation easements over rental payments and cost sharing?\nAdvantages to loans versus grants? Is there strong federal oversight of the projects?\nSeveral years ago, EPA\xe2\x80\x99s National Center for Environmental Economics prepared a\ncomprehensive report on various environmental economic incentive programs. See\nU.S. Environmental Protection Agency, EPA-240-R-01-001, The United States\nExperience with Economic Incentives for Protecting the Environment (Jan. 2001).\n\n5.\n\nThe Clean Water Act Section 404 program is unusual in the sense that federal\nenvironmental laws tend to avoid imposing mandates or restrictions on individual\nbehavior, although many environmental problems, such as climate change, are\ncaused primarily by individual lifestyle choices. See Stephen M. Johnson, Is Religion\nthe Environment\xe2\x80\x99s Last Best Hope?: Targeting Change in Individual Behavior\nThrough Personal Norm Activation, 24 J. Envtl. L. & Litig. 119 (2009); Michael P.\nVandenbergh, From Smokestack to SUV: The Individual as Regulated Entity in the\nNew Era of Environmental Law, 57 Vand. L. Rev. 515 (2004). One of the reasons\nthat direct regulation of individual behavior frequently generates public opposition is\nthat direct regulation makes the costs of the regulation more transparent than\nindirect regulation. See Katrina Fischer Kuh, When Government Intrudes:\nRegulating Individual Behaviors That Harm the Environment, 61 Duke L. J. 1111\n(2012). While Professor Kuh reports that customer service surveys of Section 404\npermit applicants do not generally reveal animosity or opposition to the program,\nshe acknowledges that the permitting requirement can generate opposition in\nspecific cases because (1) it imposes burdens on the applicant that create benefits\nfor the public; and (2) it involves federal regulation of land use, a traditionally local\nactivity. Id. at 1142-1143.\n36\n\n\x0c6.\n\nA program in flux: As you read this book, focusing on issues such as the\ndelineation of wetlands, federal jurisdiction over waters of the United States, the\ndivided responsibility of the Corps and EPA, and the implementation of\ncompensatory mitigation requirements, consider the following quote by Professor\nAlyson Flournoy: \xe2\x80\x9cA review of the section 404 program\xe2\x80\x99s evolution ... reveals a\nprogram (and agency) perpetually in flux with a poorly defined goal.\xe2\x80\x9d See Alyson C.\nFlournoy, Section 404 at Thirty-Something: A Program in Search of a Policy, 55 Ala.\nL. Rev. 607, 608 (2004). Is there a need for a different federal law to protect\nwetlands? What might be done differently?\n\nV.\n\nInternational Wetlands Protection - U.S. Role\n\nIn 1971, 18 nations reached agreement on the terms of a treaty that committed the nations\nto identify and protect \xe2\x80\x9cWetlands of International Importance\xe2\x80\x9d and to plan for the \xe2\x80\x9cwise use\xe2\x80\x9d\n(sustainable use) of all their wetlands. See Convention on Wetlands of International\nImportance Especially as Waterfowl Habitat, Feb. 2, 1971, T.I.A.S. No. 1084, 996 U.N.T.S.\n245 (amended 1982 & 1987). The Ramsar Convention, named for the city in Iran that\nhosted the negotiations, came into force in 1975. See The Ramsar Convention on\nWetlands, A Brief History of the Ramsar Convention. As of October, 2014, 168 nations\nsigned on to the Convention. See The Ramsar Convention on Wetlands, Country Profiles.\nThe United States joined in 1987. Id. Two years later, Congress passed the North\nAmerican Wetlands Conservation Act of 1989, mentioned in the last section, to partially\nimplement the convention in the United States. Pursuant to the terms of the Ramsar\nConvention, the Fish and Wildlife Service adopted a \xe2\x80\x9cPolicy on Wetlands of International\nImportance\xe2\x80\x9d in 1990. See 55 Fed. Reg. 13856 (Apr. 12, 1990). As of February, 2014, 36\nsites in the United States were designated as wetlands of international importance. See\nThe Ramsar Convention on Wetlands, The Annotated Ramsar List: United States.\n\nResearch Problems\nInternational Materials: International materials can be very difficult to locate, but the Ramsar Convention\nwebsite includes the governing documents and many other useful wetlands resources, including a site\ndatabase. See if you can answer the following questions after browsing through their website: (1) Which\nwetlands were the first wetlands in the United States to be included on the Ramsar List of Wetlands of\nInternational Importance? (2) In what year were they added to the list? (3) Which wetlands on the List of\nWetlands of International Importance are located closest to your home? Sounds like a good field trip\nopportunity. February 2 is World Wetlands Day.\n\n37\n\n\x0cVI.\n\nThe Agencies That Regulate Wetlands\n\nAlthough there are hundreds of agencies at the federal, state and local level that play some\nrole in the regulation or protection of wetlands, the four primary federal agencies that are\ninvolved in wetlands protection are the U.S. Army Corps of Engineers (within the U.S.\nDepartment of Defense), the U.S. Environmental Protection Agency, the U.S. Fish and\nWildlife Service (within the U.S. Department of Interior) and the Natural Resources\nConservation Agency (within the U.S. Department of Agriculture).\nA.\n\nCorps of Engineers\n\nThe Corps of Engineers is part of the Department of the Army, within the Department of\nDefense. The Corps\xe2\x80\x99 military leader, the Chief of Engineers, a three star general, reports\ndirectly to the Assistant Secretary of the Army for Civil Works. See Melissa Samet,\nAmerican Rivers & National Wildlife Federation, A Citizens Guide to the Corps of Engineers\n10 (2009). The Corps has primary authority for issuing Section 404 permits, including both\nindividual permits and general permits, and is responsible for the day to day administration\nof the permit program. The Corps also administers the Section 10 Rivers and Harbors Act\npermitting program. Both permitting programs are part of the Department of the Army\nRegulatory Program.\nThe Corps\xe2\x80\x99 headquarters is located in Washington, D.C., and the agency is divided\nregionally into 9 Divisions, each of which is commanded by a Division Engineer. There are\n43 Districts within the 9 Divisions, each of which is commanded by a District Engineer.\nAlthough regulations and general program policies are developed at the headquarters level,\nother aspects of the Corps\xe2\x80\x99 regulatory program are very decentralized, with most permitting\nand enforcement decisions being made on a regional level. For instance, final agency\ndecisions on most administrative appeals are made by the Division Engineers. See 33\nC.F.R. \xc2\xa7 331. General permits may also be issued on a regional basis, as well as national\nbasis. See Chapter 6, infra.\n\nA map of the Corps\xe2\x80\x99 Divisions and Districts is included below:\n\n38\n\n\x0cPhoto 13 Corps of Engineers Map from http://www.usace.army.mil/Locations.aspx\n\nFor more information about the Corps, American Rivers and the National\nWildlife Federation have prepared a useful guide to the history and structure\nof the agency and its programs. See Melissa Samet, American Rivers &\nNational Wildlife Federation, A Citizens Guide to the Corps of Engineers 10\n(2009).\n\nB.\n\nEnvironmental Protection Agency\n\nThe Environmental Protection Agency is an independent agency within the Executive\nBranch and it administers most of the nation\xe2\x80\x99s environmental laws. For wetlands, EPA\ndeveloped the guidelines that are used to evaluate Section 404 permits, the agency\nreviews and comments on the permits, and it can veto permits. See 33 U.S.C. \xc2\xa7 1344(c).\nEPA also shares wetlands enforcement authority with the Corps. See Chapter 10, infra.\nEPA is headed by an Administrator and has its headquarters in Washington, D.C. See U.S.\nEnvironmental Protection Agency, About EPA. The agency is divided into ten regions, each\n39\n\n\x0cof which is headed by a Regional Administrator. Development of regulations and national\npolicies on wetlands takes place in the Office of Water, within EPA\xe2\x80\x99s headquarters in\nWashington. However, daily administration of the agency\xe2\x80\x99s responsibilities related to\npermitting and enforcement under the 404 program takes place in the regions, in\ncoordination with headquarters. Unlike the Corps, though, EPA\xe2\x80\x99s administrative appeals are\nhandled by an Environmental Appeals Board, headquartered in Washington. In the event\nthat there are disputes between EPA and the Corps regarding individual permits, EPA\xe2\x80\x99s\nAssistant Administrator for Water (head of the Office of Water), makes final decisions\nregarding permit vetoes. A map of EPA\xe2\x80\x99s regional office structure is included below:\n\nPhoto 14 EPA Map from http://www2.epa.gov/aboutepa/visiting-regional-office\n\nC.\n\nU.S. Fish and Wildlife Service\n\nThe U.S. Fish and Wildlife Service is an agency within the Department of the Interior (DOI).\nThe agency is headed by a Director, who reports to the Assistant Secretary for Fish,\nWildlife and Parks in DOI, and it is divided into 8 regions. See U.S. Department of the\nInterior, U.S. Fish and Wildlife Service, Our Regions. The agency reviews and comments\non Section 404 permits and Rivers and Harbors Act permits based on authority in the Fish\nand Wildlife Coordination Act and the Clean Water Act. The agency also administers the\nNational Wetlands Inventory.\nD.\n\nNatural Resources Conservation Service\n\nThe Natural Resources Conservation Service is an agency within the Department of\nAgriculture (USDA). It is headed by a Chief, who reports to the Under Secretary for Natural\nResources and the Environment in USDA, and it is divided into 4 regions, which are\nheaded by Regional Conservationists. See U.S. Department of Agriculture, Natural\n40\n\n\x0cResources Conservation Service, National Headquarters Directory. The agency\nadministers the Swampbuster provisions of the Food Security Act and administers several\neconomic incentive programs for protection of wetlands on agricultural lands. See supra.\nE.\n\nU.S. Department of Justice, Environment and Natural Resources Division\n\nWhile many disputes involving wetlands are resolved administratively, without going to\ncourt, wetland litigation for the Corps, EPA and other federal agencies is handled by the\nEnvironment and Natural Resources Division of the United States Department of Justice.\nWithin the Division, the Environmental Defense Section handles wetlands enforcement as\nwell as defense of most lawsuits against the Corps and EPA involving actions relating to\nthe Section 404 permitting program. For a history of the Division, see Richard J. Lazarus,\nOne Hundred Years of the Environment and Natural Resources Division, 41 ELR 10985\n(Nov. 2011); U.S. Department of Justice, ENRD: Public Lands and National Treasures: The\nFirst 100 Years of the Environment and Natural Resources Division (2009).\n\n41\n\n\x0cInterview\nStephen Samuels, an Assistant Section Chief in the Environmental Defense\nSection of the Environment and Natural Resources Division of the U.S.\nDepartment of Justice, discusses:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nThe division of responsibility for wetlands litigation within the Environment\nand Natural Resources Division (YouTube).\nHow the Environmental Defense Section represents multiple federal\nagencies that may take conflicting positions on issues in litigation\n(YouTube).\nThe role that DOJ\'s Environment and Natural Resources Division plays in\ndeveloping regulations and legislation, focusing specifically on legislative\nand regulatory initiatives to clarify the scope of the "waters of the U.S."\n(YouTube).\n\nResearch Problems\nAgency Contacts: You represent a landowner in Charleston, South Carolina, who is interested in\nobtaining a wetlands permit from the Corps. You understand that the Regulatory Section of the Corps\nissues those permits at the District level. What telephone number would you call for more information about\nthe permitting process? If you ultimately needed to appeal a decision of the District Office, to what\nDivisional Office would you appeal?\nAssume that your client lives in Langhorne, Pennsylvania, instead of Charleston, and that your client is a\nneighbor of a developer who is filling wetlands without a permit. Your client wants to speak to someone at\nEPA about the violation in their office, rather than on the phone. Where is the closest Regional Office\nlocated?\n\n42\n\n\x0cHypothetical\nEnvironmental law can be a complex area of practice. It often involves an intricate web of\nfederal, state and local laws, regulations and policies, and the disputes may focus on\ncomplicated scientific principles. Consider that as you read the following dialogue between a\nlawyer and a client regarding a wetlands matter. The lawyer has practiced family law for twentyfive years and specializes in divorce cases. The client has retained the lawyer to finalize the\nterms of the client\xe2\x80\x99s third divorce.\n\nScene: Lawyer\xe2\x80\x99s office in Whitefish, Montana\nClient: Well, three times was not the charm. I guess I keep you pretty busy, don\xe2\x80\x99t I?\nLawyer: I\xe2\x80\x99m sure that you\xe2\x80\x99ll find true love one of these days. But until you do, I\xe2\x80\x99m happy to help\nyou move on with your life.\nClient: Thanks. You do a great job and I\xe2\x80\x99m very happy with your work, but I would like it if I\ndidn\xe2\x80\x99t need to keep seeing you like this every few years. While I\xe2\x80\x99m here, though, I had a\nquestion about a different issue. Do you do any environmental law?\nLawyer: If someone\xe2\x80\x99s got an environmental law question, it usually has some science in it. I\nusually try to stay as far away from those as I can.\nClient: I don\xe2\x80\x99t think this one is that tough. Here\xe2\x80\x99s the thing. You know that my daughter just\ngraduated from college with an environmental science degree.\nLawyer: That\xe2\x80\x99s great. Congratulations.\nClient: Thanks. Well, she\xe2\x80\x99s visiting a few weeks ago and she tells me that she thinks that this\nlittle ditch in my backyard is a wetland. I told her that I was going to be filling it in to build a\ngarage back there and she told me that I might need to get a permit to do that. She said\nsomething about a Clean Water Act. Does the city require permits for things like that? I know\nthat I had to get a permit from P&Z when I re-built my deck, but I didn\xe2\x80\x99t know that they made\nyou get permits to fill ditches.\nLawyer: Like I said. I really have never handled any environmental cases, so I\xe2\x80\x99m not sure about\nwhether the city or anyone else would require a permit for that. My sister is a lawyer, too, and\nshe deals with a lot of environmental matters in her real estate practice. I\xe2\x80\x99d give her a call, but\nwe\xe2\x80\x99re not really talking right now. I\xe2\x80\x99ve got a friend in town who does hazardous waste law. He\nmight know something about wetlands and I could probably call him, but he\xe2\x80\x99s on vacation until\nnext week.\nClient: Next week would be o.k. I\xe2\x80\x99m not planning to do anything about the garage for a while,\nbut I just wanted to know if I would need to get a permit before I did anything.\n\n43\n\n\x0cLawyer: I\xe2\x80\x99ll do a little research on it, then, and get back to you. But you know, I really don\xe2\x80\x99t\nfeel right about charging you for that, since I don\xe2\x80\x99t really do environmental law. This one will\nbe on the house.\nClient: Well, that\xe2\x80\x99s nice of you, but I really would feel better if I paid you for it.\nLawyer: I insist. No charge on this one. I\xe2\x80\x99ll look into it and get back to you as soon as I can.\nAnd I should have those papers for the divorce ready for you to sign tomorrow.\nClient: Thanks. So I\xe2\x80\x99ll stop back tomorrow, then.\n(Client leaves)\nLawyer: Sam, could you call Paul\xe2\x80\x99s office and see if he has some time to talk about a\nwetlands issue?\nSam (Lawyer\xe2\x80\x99s assistant): I would, but he\xe2\x80\x99s on vacation for the next month.\nLawyer: A month? I thought that he was getting back next week.\nSam: No. It\xe2\x80\x99s a month. He rented an RV and took the family to see all of the national parks in\nCalifornia.\nLawyer: Oh, well. I guess he won\xe2\x80\x99t be any help, then. Pat, I\xe2\x80\x99ve got some research for you to\ndo.\nPat (Lawyer\xe2\x80\x99s paralegal): O.K. What do you need?\nLawyer: I need you to find out whether someone needs to get a permit to fill a ditch to build\na garage. Our client says that his daughter thinks that the ditch is a wetland and that the\nClean Water Act might require him to get a permit to fill the ditch.\nPat: I\xe2\x80\x99ll get right on it.\n(Pat does some research and returns)\nPat: Good news. I searched through the whole Clean Water Act online and it only mentions\nwetlands a few times, but doesn\xe2\x80\x99t say anything about requiring a permit to fill wetlands. It\ndoes have a few different permit programs, but they are only triggered if there is an addition\nof a pollutant to a navigable water. You said that the client was asking about a ditch, right?\n\n44\n\n\x0cLawyer: Yeah. The client said a ditch. The client\xe2\x80\x99s daughter said a wetland. Neither of them\nsaid anything about a navigable water. I would imagine that a navigable water is something\nthat you can navigate, right?\nPat: Well, I checked the regulations, and it\xe2\x80\x99s actually a little broader than that. It turns out that\nit\xe2\x80\x99s the federal government - EPA and the Army - that administer the Clean Water Act. It\xe2\x80\x99s not\na local government thing. They\xe2\x80\x99ve adopted regulations to define navigable waters. I didn\xe2\x80\x99t see\nanything in the regulations about ditches, though, so I think that our client can go ahead and\nfill the ditch without worrying about getting a permit.\nLawyer: That\xe2\x80\x99s great. Thanks for finding that so quickly. I guess this environmental law isn\xe2\x80\x99t\nthat tough, after all. I\xe2\x80\x99m sure our client will be happy to hear that they can go ahead and fill the\nditch. I\xe2\x80\x99ll call the client right now and fill them in on the good news.\nLawyer (on the phone): Jordan, good news. I did some research on your wetlands issue and\nit looks like you won\xe2\x80\x99t need a permit. You can go ahead and get started on your garage\nwhenever you like\xe2\x80\xa6.\nQuestion\nWere you troubled, in any way, by the lawyer\xe2\x80\x99s representation of the client on the wetlands\nissue in the scenario above? Is it relevant that the lawyer was not paid for the advice? What\nshould the lawyer have done differently? See American Bar Association, Model Rule of\nProfessional Conduct 1.1 (and accompanying comments).\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 2, why not try a CALI lesson on the material at: http://cca.li/PR.\nIt should only take about fifteen minutes.\n\n45\n\n\x0cChapter 3\nAdministrative Law\nThe laws that protect wetlands in the United States are administered by the United States\nEnvironmental Protection Agency (EPA), the United States Army Corps of Engineers (the\nCorps), and a variety of other federal, state and local agencies. It is important, therefore, to\nunderstand the basic principles of administrative law in order to comprehend the nuances\nof federal and state wetlands protection laws. This Chapter provides a general introduction\nto administrative agencies and administrative law. Although the Chapter focuses primarily\non federal agencies, state and local agencies are often governed by state laws that closely\nresemble the federal laws.\nI.\n\nNature of Administrative\nAgencies\n\nResources\nList of Federal Agencies from USA.gov and the\nFederal Register\nAdministrative Conference of the U.S. (ACUS)\nOffice of Management and Budget (White House)\nSourcebook of U.S. Executive Agencies (ACUS)\n\nAdministrative agencies are ubiquitous.\nThink, for a moment, about your typical\nday. Your alarm clock wakes you to the\nsounds of your favorite radio station. That\nstation is licensed and regulated by the\nFederal Communications Commission, a\nfederal administrative agency. As you\njump into the shower, the water may be delivered to your home by a municipal or regional\nwater authority, a public utility, which is usually regulated by a state utility commission. The\nwater quality is regulated by federal and state environmental or health agencies.\n\nWhen you go to the kitchen for breakfast and pour yourself a bowl of cereal, you\xe2\x80\x99ll notice\nthat the cereal package includes nutritional labels required by the Food and Drug\nAdministration. In addition, the production of the ingredients in the cereal, and in most of\nthe other foods that you put on your breakfast table, is likely regulated by federal, state and\nmaybe local agricultural and environmental agencies. Those products were produced by\nbusinesses that were required to adhere to fair labor standards and workplace safety\nstandards set by federal and state labor departments. The electricity in your home is most\nlikely provided by a utility that is regulated by federal and state energy, environmental and\nlabor agencies, as well as state utility commissions.\nIf you drive to work, the car that you are driving was also likely produced in a factory that\nwas subject to fair labor and workplace safety standards. In addition, the car was built to\n46\n\n\x0ccomply with safety and environmental standards set by federal and state transportation and\nenvironmental agencies. Indeed, it is hard to identify events in your daily routine that are\nnot touched, in some way, by administrative agency regulation.\nAdministrative agencies exist at the federal, state and local levels and are often referred to\nas the \xe2\x80\x9cfourth branch\xe2\x80\x9d of government. As is obvious from the discussion above, agencies\nexert broad authorities over public and private activities. Moreover, agencies can take a\nvariety of types of actions. First, agencies often create standards, limits or other\nrequirements that apply to the communities that they regulate (rulemaking). For instance,\nan environmental agency may set limits on the amount of lead that can be emitted into the\nair by a factory or a car. As another example, in the context of wetlands regulation, the EPA\nand Corps establish rules that outline the requirements for obtaining a permit to fill wetlands\nunder the Clean Water Act. See Chapter 6, infra.\nIn addition to setting standards and making rules, agencies apply the law and the rules that\nthey make to specific factual situations on a case-by-case basis (adjudication). In the\nwetlands context, for instance, the Corps decides whether to issue or deny a wetlands\npermit, and what conditions to include in the permit, by applying the Clean Water Act and\nits regulations to the developer\xe2\x80\x99s proposed activity. See Chapter 6, infra. Similarly, the\nCorps or EPA can bring an administrative or judicial enforcement action against a person\nwhen the agency determines that the person\xe2\x80\x99s activities violate the Clean Water Act and/or\nthe agency\xe2\x80\x99s regulations. See Chapter 10, infra.\nIn order to create rules and to make decisions on a case-by-case basis, agencies also\ncollect information from the regulated community and other sources. They maintain that\ninformation, make much of it available to the public and often create reports based on the\ninformation.\nConsequently, administrative agencies engage in activities that can be characterized as\nlegislative (setting standards and establishing other rules), judicial (applying the law to\nfacts on a case-by-case basis) and executive (implementing and administering the law).\nThis combination of functions in federal administrative agencies creates some tensions,\nbecause the United States Constitution exclusively assigns these functions to other\nbranches of government. Article I of the Constitution creates the Legislative Branch, and\nprovides that \xe2\x80\x9c[a]ll legislative powers herein granted shall be vested in a Congress of the\nUnited States.\xe2\x80\x9d U.S. Const., Art. I. Similarly, Article III creates the Judicial Branch, and\nprovides that \xe2\x80\x9c[t]he judicial power of the United States shall be vested in one Supreme\nCourt, and in such inferior courts as the Congress may from time to time ordain and\nestablish.\xe2\x80\x9d U.S. Const., Art. III. Finally, Article II of the Constitution provides that \xe2\x80\x9c[t]he\nexecutive power shall be vested in a President of the United States.\xe2\x80\x9d U.S. Const., Art. II. In\ncontrast to those direct statements, there is no provision in the Constitution that explicitly\ncreates or authorizes the creation of administrative agencies or authorizes them to carry out\nthe powers delegated to the legislative, judicial or executive branches of government.\n47\n\n\x0cSimilar separation-of-powers concerns can arise under state constitutions, which also do\nnot explicitly provide for state administrative agencies.\nNevertheless, agencies have flourished throughout the twentieth and twenty-first centuries\nand courts have generally upheld most delegations of authority to agencies against\nconstitutional challenges, as discussed further below.\nII.\n\nLimits on Agency Authority\n\nA.\n\nStatutory Limits\n\nAgencies are created by statutes. The composition of agencies, their authorities, and any\nlimits on their authorities are set forth in legislation. Congress or a state legislature often\ninitially creates an agency through an \xe2\x80\x9corganic statute,\xe2\x80\x9d but the legislature frequently\nexpands or limits the agency\xe2\x80\x99s powers through other statutes that target the specific agency\nor statutes that apply generically to a group of agencies or to all agencies. For example,\nEPA was initially created by a Presidential Reorganization Plan that reassigned\nresponsibilities of other federal administrative agencies to EPA, see Office of the President,\nReorganization Plan No. 3 of 1970 (July 9, 1970), but Congress subsequently passed\ndozens of laws that expanded or limited EPA\xe2\x80\x99s authority to regulate various activities. As\nnoted throughout this book, the Clean Water Act, 33 U.S.C. \xc2\xa7\xc2\xa7 1251, et seq., establishes\nmost of the authorities and limits on authority for wetlands regulation by EPA and the Army\nCorps.\nAs noted above, Congress frequently authorizes, and sometimes requires, agencies to set\nstandards or to promulgate rules that apply generally to persons or entities regulated by the\nstatute. There are several reasons why Congress gives this power, which seems like lawmaking authority, to agencies. In some cases, the legislature simply does not have the time\nto set standards at the level of detail that is necessary to implement the law. For instance,\nthe Clean Water Act imposes limits on hundreds of different types of industries regarding\nthe amount of potentially hundreds of different types of pollutants that they might discharge\nbased on technologies that those industries can use to reduce or eliminate those pollutants.\nSee U.S. Environmental Protection Agency, Water: Industry Effluent Guidelines. When\nCongress created the program limiting those pollutants, it delegated to the EPA the\nauthority to establish specific numerical limits on the industries through a rulemaking\nprocess, rather than trying to establish those thousands of numerical limits in the statute\nitself. See 33 U.S.C. \xc2\xa7 1311.\nIn addition to not having the time to enact detailed standards, Congress also may not have\nthe expertise to determine what specific numerical standards may be appropriate for\nspecific industries. Although the legislature will likely have some experts on staff, they will\nnot have the resources that are available to an administrative agency, which will also have\nthe experience of implementing the law on a day-to-day basis. Continuing with the Clean\n48\n\n\x0cWater Act example, because an agency may be better equipped to determine the specific\nnumerical pollutant limits, Congress will often give the agency general directions regarding\nhow to set those numerical limits but allow the agency to establish the limits through a\nrulemaking process.\nThere are a few other reasons why Congress frequently delegates authority to agencies to\nmake rules. To the extent that regulatory restrictions in a law are based on specific\ntechnological, economic, or other assumptions that are in existence at the time the\nrestrictions are put in place, those restrictions may no longer be appropriate when the\ntechnological, economic or other circumstances change. If Congress were to have set the\nregulatory restrictions by statute, Congress could only change the restrictions by enacting\nanother statute. When Congress delegates the authority to an agency to set the restrictions\nthrough rulemaking, however, the agency can respond to changing circumstances by\nchanging the requirements through rulemaking, as opposed to waiting for legislative\nconsensus. In theory, the rulemaking process should be faster than the legislative process.\nIn practice, that is not always true.\nA final reason why Congress may delegate authority to an agency to make rules, rather\nthan setting the standards directly through legislation, is that Congress may lack the\npolitical will to set the standards itself. Delegating to an agency the authority to set\nspecific standards gives Congress political cover from difficult political issues in\nimplementation of the legislation.\nB.\n\nConstitutional Limits\n\nWhile agencies are created by statute, Congress cannot\namend the Constitution simply by enacting a statute.\nConsequently, at the dawn of the era of administrative law,\nopponents of agency rulemaking frequently asserted that\nthe delegation of rulemaking authority to an agency\nviolated constitutional separation of powers principles,\non the basis that Article I vests legislative powers\nexclusively in Congress. The United States Supreme Court\noutlined the limits of Congress\xe2\x80\x99 authority to delegate Photo 15 National Archives\nrulemaking authority to agencies in J.W. Hampton, Jr. & http://commons.wikimedia.org/wiki/\nCo. v. United States, 276 U.S. 394, 409 (1928), when the File:Constitution_Pg1of4_AC_icon_\ncut.png\nCourt held that Congress could constitutionally delegate\nratemaking authority as long as it set forth \xe2\x80\x9cby legislative act an intelligible principle to\nwhich the person or body authorized to fix rates is directed to conform.\xe2\x80\x9d Thus, as long as\nCongress provides a very general standard for the agency to use to set more specific\nstandards, courts will uphold the statutory delegation of rulemaking authority against a\nConstitutional challenge. The Supreme Court has not struck down a federal statute on the\ngrounds that it constituted an excessive delegation of legislative authority since 1935, when\n49\n\n\x0cit invalidated codes of fair competition established under the National Industrial Recovery\nAct in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Since that\ntime, the Court has upheld broad delegations of authority, including the authority to set \xe2\x80\x9cjust\nand reasonable rates\xe2\x80\x9d, see FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944), to set\nprices that are \xe2\x80\x9cfair and equitable\xe2\x80\x9d, see Yakus v. United States, 321 U.S. 414 (1944), and to\nregulate licensing \xe2\x80\x9cas public interest, convenience, or necessity require.\xe2\x80\x9d See National\nBroadcasting Co. v. United States, 319 U.S. 190 (1943). In a more recent decision in the\nenvironmental arena, the Supreme Court upheld the Clean Air Act delegation of authority to\nEPA to set \xe2\x80\x9cambient air quality standards the attainment and maintenance of which in the\njudgment of the Administrator, based on such criteria and allowing an adequate margin of\nsafety, are requisite to protect the public health.\xe2\x80\x9d See Whitman v. American Trucking\nAssns., Inc., 531 U.S. 457 (2001).\nThe delegation of adjudicative authority to agencies has also been challenged as a\nviolation of separation of powers principles. Because Article III vests all judicial power in\nthe Article III courts, critics have argued that the delegation of authority to agencies to apply\nthe law to facts on a case-by-case basis to issue or deny permits, to impose penalties, or to\ntake other adjudicative actions violates the Constitution. A discussion of the case law\ninterpreting the constitutional limits on the delegation of adjudicative authority to agencies is\nbeyond the scope of this book. In the wetlands context, however, most final administrative\nadjudications can be challenged at some point in an Article III court, so the separation of\npowers issue has not proven problematic in the context of federal wetland regulation.\nC.\n\nLimits Imposed by Other Branches\n\nAlthough agencies are referred to as the \xe2\x80\x9cfourth branch\xe2\x80\x9d of government, the other branches\ncan influence agencies actions in a variety of ways. Because the source and limits of\nagencies\xe2\x80\x99 powers are set by statute, Congress can exert significant influence over\nagencies by passing laws that reduce or eliminate agencies\xe2\x80\x99 powers if Congress opposes\nactions taken by agencies. Similarly, agencies rely on annual appropriations legislation\nfrom Congress to fund their activities, so Congress can exert influence over agencies by\ndecreasing, or threatening to decrease, an agency\xe2\x80\x99s budget. In the wetlands context,\nCongress has frequently attached riders to appropriations legislation that limit the authority\nof the Corps to implement policies with which Congress disagrees. See Chapter 4, infra. In\naddition to those powers, the Senate has the power to approve the appointment of\n\xe2\x80\x9cofficers,\xe2\x80\x9d which can include high ranking agency officials. See U.S. Const., Art. II, \xc2\xa7 2. The\nSenate may block or delay appointments of those officials if the Senate opposes the\npotential candidate or, sometimes, if the Senate opposes the policies that have been\nadopted by the agency. Even when Congress does not actually exercise any of these\npowers, it can exert control over agencies by threatening to exercise them. Congress\nfrequently holds oversight hearings, calling agency leaders to testify regarding actions\ntaken by the agency or to testify regarding proposed legislative changes.\n\n50\n\n\x0cThe President also exerts control and influence over agencies, including the Corps and\nEPA. The White House has ultimate control over the budget, legislative proposals, and\nlitigation positions taken by Executive Branch agencies. Although the agencies can develop\nbudget requests, the requests are coordinated through the White House Office of\nManagement and Budget (OMB) and the White House makes the ultimate decision\nregarding the amount of funds to request for each agency. Similarly, agencies cannot work\nwith legislators independently to advance legislative proposals to expand their authorities or\neliminate responsibilities. Legislative proposals, like budget requests, must be coordinated\nthrough the OMB. OMB also reviews major regulations developed by agencies, as well as\nregulatory agendas and various guidance documents prepared by agencies. For litigation,\nExecutive Branch agencies are generally represented by the Department of Justice, so the\nWhite House also can exert some control over the positions taken in litigation by agencies.\nThe President also has the power to appoint and remove officers of the United States,\nwhich includes high ranking agency officials. See U.S. Const., Art. II, \xc2\xa7 2.\nOne of the more formal ways that the President controls Executive Branch agencies is\nthrough the issuance of Executive Orders. Executive Orders are not laws; instead, they\ndirect agencies, where agencies have discretion, to implement policies, take actions, or\nfollow procedures outlined in the order. Because an Executive Order is not a law, it cannot\nchange existing law, but it can influence the manner in which agencies exercise discretion\nafforded to them under existing laws. Executive Orders cannot be challenged in court, but\nsome orders have been held to be enforceable in administrative proceedings. Over the\nyears, Presidents have issued several Executive Orders that apply to the development of\nwetlands regulations and other regulations, including an Executive Order that requires\nagencies to weigh the costs and benefits of major rules, see Executive Order 12866, 58\nFed. Reg. 51735 (Oct. 4, 1993), and an Executive Order that requires agencies to consider\nwhether their actions may unconstitutionally \xe2\x80\x9ctake\xe2\x80\x9d property. See Executive Order 12630,\n53 Fed. Reg. 8859 (Mar. 15, 1988).\nThe judicial branch also exerts control. Because the courts have\nthe ultimate authority to adjudicate disputes involving the Clean\nWater Act and other wetlands protection laws, the judicial\nbranch can limit agencies by invalidating their actions if they\nmisinterpret the law, fail to follow procedures required by\nstatutes, regulations, or the Constitution, or make decisions that\nare unreasonable. Those limits are explored more fully in the\njudicial review section of this Chapter.\nPhoto 16 By Matthew Trump\nhttp://commons.wikimedia.org/wiki/File:D\nSCN2559_jacksoncountycourthouse_600.jp\ng distributed under GNU Free\nDocumentation License v 1.2\n\n51\n\n\x0cIII.\n\nProcedural Requirements for Agency Action\n\nAlthough agencies engage in a variety of different activities, most agency actions can be\ncategorized as either rulemaking or adjudication. As noted above, adjudication involves\nthe application of law to a specific set of facts, while rulemaking involves establishing a\ngeneral standard or obligation that applies broadly and prospectively. The Administrative\nProcedures Act (APA), the federal statute that establishes the procedures that all agencies\nmust follow and that outlines the manner in which agency actions can be challenged in\ncourt, defines a \xe2\x80\x9crule\xe2\x80\x9d as \xe2\x80\x9cthe whole or a part of an agency statement of general or\nparticular applicability and future effect designed to implement, interpret, or prescribe law or\npolicy or describing the organization, procedure, or practice requirements of an agency ...\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 551(4). The Act defines \xe2\x80\x9cadjudication\xe2\x80\x9d, as \xe2\x80\x9cagency process for formulation of an\norder\xe2\x80\x9d, 5 U.S.C. \xc2\xa7 551(7), and defines \xe2\x80\x9corder\xe2\x80\x9d as \xe2\x80\x9cthe whole or a part of a final disposition,\nwhether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter\nother than rule making but including licensing.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 551(6). Although rulemaking and\nadjudication are distinct categories of agency actions, an agency can generally interpret\nand clarify ambiguous provisions of a statute either through rulemaking or in an\nadjudication, if Congress has given the agency both powers and has not required the\nagency to use a specific procedure to interpret the statute. See Securities and Exchange\nCommission v. Chenery, 332 U.S. 194 (1947).\nWithin the broad category of rulemaking, an agency\xe2\x80\x99s rules can be divided into legislative\nrules (sometimes called \xe2\x80\x9csubstantive rules\xe2\x80\x9d) and non-legislative rules. When Congress, in\na statute, authorizes an agency to makes rules that have the force of law and the agency\nadopts rules pursuant to that statutory authority, following the required administrative\nprocedures (generally known as \xe2\x80\x9cnotice and comment\xe2\x80\x9d rulemaking), the rules are\nlegislative rules. For example, the Clean Water Act authorizes EPA to issue any\nregulations that are necessary to carry out the agency\xe2\x80\x99s functions under the Act, see 33\nU.S.C. \xc2\xa7 1361(a), and authorizes the Corps to adopt regulations to implement the Section\n404 permit program. See 33 U.S.C. \xc2\xa7 1344. Thus, when EPA adopts rules to clarify the\nmeaning of the statutory term \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d which is not defined in the\nClean Water Act, EPA\xe2\x80\x99s rules are legislative rules. Similarly, the Corps\xe2\x80\x99 section 404\npermitting regulations, the 404(b)(1) Guidelines adopted by EPA, with the Corps, and the\ncompensatory mitigation regulations adopted by EPA and the Corps are legislative rules.\nWhile agencies with legislative rulemaking authority can adopt legislative rules, there are\ntimes when an agency does not have legislative rulemaking authority or when an agency\nhas that authority but prefers not to exercise it. In those situations, agencies can still\ninterpret a statute through a non-legislative rule. Agencies may choose to interpret\nstatutes through non-legislative rules for a variety of reasons. First, as will be discussed\nbelow, agencies must follow certain procedures when adopting legislative rules, but are\nsubject to very few procedural requirements when adopting non-legislative rules. Because\nthe legislative rulemaking procedures may be time consuming, an agency may decide to\n52\n\n\x0cissue a non-legislative rule in order to announce its interpretation of the law more quickly.\nAn agency might also decide to use a non-legislative rule because the agency is still\nuncertain about its interpretation of the statute and would like to retain the flexibility to\nchange that interpretation without going through a legislative rulemaking process, which it\nwould be required to do if it wanted to change a legislative rule. In addition, because a nonlegislative rule is often not a \xe2\x80\x9cfinal agency action,\xe2\x80\x9d an agency can also generally avoid legal\nchallenges to the rule in court.\nNon-legislative rules are issued in a variety of forms, including interpretative rules, policy\nstatements, guidance documents, and enforcement manuals, among others. In the\nwetlands context, the Corps issues many legal and policy interpretations in the form of\nRegulatory Guidance Letters. The delineation manual discussed in Chapter 1 is another\nexample of a non-legislative rule. In addition, important wetlands legal and policy directives\nof EPA, the Corps, and other federal agencies are included in Memoranda of Agreement\nand Memoranda of Understanding discussed throughout this book. Federal administrative\nagencies, across the board, have increasingly interpreted statutes through guidance\ndocuments and other non-legislative rules because of the advantages outlined above.\nWhile an agency can save time, avoid litigation, and retain flexibility by interpreting a\nstatute through a non-legislative rule, legislative rules have two distinct advantages over\nnon-legislative rules. First, legislative rules have the force of law and agencies do not have\nto independently justify the basis for the rule when applying it to a specific factual setting.\nNon-legislative rules, on the other hand, are not binding on the agency or the regulated\ncommunity. An agency must justify the basis for the legal or policy interpretation adopted in\nthe non-legislative rule when applying it to a specific factual setting. The second important\nadvantage that legislative rules have is that courts will accord an agency more deference\nwhen reviewing the statutory interpretation adopted by the agency in a legislative rule than\nin a non-legislative rule. The different standards of judicial review that apply to legislative\nand non-legislative rules are discussed in the judicial review section of this Chapter.\n\n53\n\n\x0cAdvantages of Legislative v. Non-Legislative Rules\nLegislative Rules\n\nNon-Legislative Rules\n\nForce of Law\n\nFewer Procedures (Quicker)\n\nGreater Judicial Deference\n\nEasier to Change (More Flexible)\nHarder to Challenge in Court\n\nA.\n\nRulemaking Procedures\n\nResources\nOIRA - Rulemaking Primer\nOMB\xe2\x80\x99s Reginfo website (Track regulations)\nRegulations.gov (Online rulemaking)\nRegulation Room (Cornell e-rulemaking project)\nCongressional Research Service report on\nRulemaking and Judicial Review (2011)\nCongressional Research Service report re: number of\nrules issued by agencies (2013)\n\nThe procedures that agencies must\nfollow when adopting rules or making\ndecisions through adjudication are set\nby the APA, which applies to all federal\nagencies, but can be modified by\nspecific statutes, such as the Clean\nWater Act. The APA requires agencies\nto follow either formal rulemaking\nprocedures or informal (\xe2\x80\x9cnotice and comment\xe2\x80\x9d) rulemaking procedures when adopting\nlegislative rules, see 5 U.S.C. \xc2\xa7 553, but it exempts non-legislative rules from those\nprocedural requirements. Id. \xc2\xa7 553(b)(3)(A). Formal rulemaking involves a trial-type\nhearing before an administrative law judge, who makes a decision based on a record\npresented at the hearing. See 5 U.S.C. \xc2\xa7\xc2\xa7 556 - 557. An agency must adopt rules through\nformal rulemaking only when the statute that authorizes the agency to make rules requires\nthe agency to make the rules \xe2\x80\x9con the record after opportunity for an agency hearing.\xe2\x80\x9d See 5\nU.S.C. \xc2\xa7 553(c). Courts rarely interpret statutes to require formal rulemaking and have not\ninterpreted the Clean Water Act to require formal rulemaking for the regulations adopted by\nthe Corps or EPA.\nIf an agency is not required to follow formal rulemaking procedures when adopting\nlegislative rules, the agency must follow the APA\xe2\x80\x99s informal rulemaking procedures. For\ninformal rulemaking, the APA requires agencies to begin the process by publishing a\nnotice of proposed rulemaking in the Federal Register, including the terms or substance\nof the proposed rule, a reference to the legal authority for the rule, and a statement of the\ntime, place and nature of public rulemaking proceedings. See 5 U.S.C. \xc2\xa7 553(b). The\n54\n\n\x0cagency is not required to hold public hearings, although it can, but the agency is required to\nprovide interested persons an opportunity to comment on the proposed rule. Id. \xc2\xa7 553(c).\nUnlike formal rulemaking, therefore, there is no formal record for the agency\xe2\x80\x99s decision and\nthe agency can rely solely on written submissions in formulating its rule. At the end of the\ncomment period, the agency reviews the public input and decides whether to make any\nchanges to the proposed rule based on the comments that the agency received. When the\nagency has finalized the rule in light of the public input, the APA requires the agency to\nprovide a \xe2\x80\x9cconcise general statement of [the] \xe2\x80\xa6 basis and purpose\xe2\x80\x9d of the rules, which\nthe agency publishes with the final rule in the Federal Register. Id. Agencies do not have to\nchange rules based on the public input, but they must consider the comments, respond to\nthe major comments and identify the \xe2\x80\x9cmajor issues of policy\xe2\x80\x9d that they considered in\nformulating the rule. See United States of America v. Nova Scotia Food Products Corp.,\n568 F.2d 240 (2d Cir. 1977).\nToday, significant portions of the notice-and-comment process take place online, and\ninterested persons are able to view comments submitted by other persons during the\ncomment period, as well as significant amounts of information that the agency relied on in\npreparing a proposed rule that would not have been as readily accessible before agencies\nbegan to carry out the notice and comment process online. See Regulations.gov.\nWhile the APA establishes procedures for legislative (or substantive) rules, it does not\nrequire agencies to follow any specific procedures when adopting non-legislative rules.\nAgencies generally develop such guidance with very little input from the public or notice to\nthe public. Although the APA does not require agencies to follow procedures in developing\nnon-legislative rules, the Freedom of Information Act (FOIA) requires federal agencies to\npublish, in the Federal Register, \xe2\x80\x9cstatements of general policy or interpretations of general\napplicability formulated and adopted by the agency.\xe2\x80\x9d See 5 U.S.C. \xc2\xa7 552(a)(1)(D). In\naddition, FOIA requires agencies to make available to the public other statements of\npolicy or interpretations that haven\xe2\x80\x99t been published in the Federal Register, as well as\n\xe2\x80\x9cadministrative staff manuals and instructions to staff that affect a member of the public.\xe2\x80\x9d Id.\n\xc2\xa7 552(a)(2).\nCongress can impose additional procedural requirements on the development of legislative\nor non-legislative rules by agencies and, when it does, the rulemaking process is referred\nto as hybrid rulemaking. However, the Clean Water Act does not require EPA or the\nCorps to follow additional procedures beyond the APA\xe2\x80\x99s when adopting regulations and\nguidance under the statute.\n\n55\n\n\x0cAPA Procedural Requirements for Rulemaking\nLegislative Rules Formal Rulemaking\n\nLegislative Rules Informal Rulemaking\n\nNon-Legislative Rules\n\ntrial-type hearing\nbefore an ALJ;\ndecision \xe2\x80\x9con the\nrecord\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 556, 557\n\nnotice; opportunity for\ncomment; publication of\nfinal rule with a concise\ngeneral statement of the\nbasis and purpose\n5 U.S.C. \xc2\xa7 553\n\npublish or make available\n5 U.S.C. \xc2\xa7 552\n\nResearch and Drafting Exercise\nMost federal agencies post proposed and final rules, as well as guidance documents and other\nimportant public information on their websites. In addition, many federal agencies post proposed\nrulemakings and documents that support the proposed rulemakings online and allow interested\npersons to comment online through Regulations.gov Those agencies also make the final rules,\nsupporting documents and comments available on Regulations.gov Guidance documents and other\nagency materials are also posted on Regulations.gov\n1. In 2014, EPA and the Corps of Engineers issued a notice of proposed rulemaking to re-define\n\xe2\x80\x9cwaters of the United States\xe2\x80\x9d under the Clean Water Act. The proposal was posted on\nRegulations.gov on April 21, 2014. Search Regulations.gov to find the EPA docket for the proposed\nrule. When you find it, click on the \xe2\x80\x9cOpen Docket Folder\xe2\x80\x9d link. This lists all of the documents that were\nposted that are associated with the rulemaking. Who were the agency contacts for the rule?\n2. Review the proposed rule and identify: (a) the legal authority for the rule adopted by EPA and the\nCorps; (b) the length of the comment period; (c) the proposed definition of \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d that would be included in 33 C.F.R. \xc2\xa7 328.3(a); (d) whether EPA or the Corps prepared an\nenvironmental impact statement or an environmental assessment for the proposed rulemaking.\n3. In the supporting documents for the proposed rule, review the economic analysis prepared for the\nrule and identify the total low and high estimated incremental annual indirect costs and benefits of the\nproposed rule (per Exhibit 16). Does EPA estimate that benefits of the rule will be greater than the\ncosts?\n4. To get a flavor for the nature of public comments submitted in notice and comment rulemaking,\nsearch for the docket for the Federal Motor Carrier Safety Administration\xe2\x80\x99s (FMCSA) rule restricting\nthe use of cellular phones by drivers of commercial vehicles. (FMCSA-2010-0096). When you find\nthat docket, click on the \xe2\x80\x9cOpen Docket Folder\xe2\x80\x9d link and browse through some of the comments\nsubmitted to FMCSA for the rule. Compare, for instance, the comments submitted by Robert Paul\nSmith or Wildon Clyde Renn III, and those submitted by Edison Electric Institute or the Alliance of\nAutomobile Manufacturers. Review the \xe2\x80\x9cTips for Submitting Effective Comments\xe2\x80\x9d on the\nRegulations.gov page. After reviewing those tips, do you think that the comments of Mr. Smith or the\nEdison Electric Institute are likely to be more effective?\n\n56\n\n\x0cResearch and Drafting Exercise (continued)\n5. Regulations.gov allows users to browse through regulations, guidance documents and the other\nmaterial available on the site by category or by topic, as well as searching by keyword. Click on the\n\xe2\x80\x9cBrowse\xe2\x80\x9d button on the top of the page, pick a category (i.e., Aerospace and Transportation;\nBanking and Financial; etc.) and search for all of the proposed rules that are open for comment in\nthat category. Which category did you choose and how many proposed rules did you find that were\ncurrently open for comment?\n6. Regulations.gov allows you to track a rulemaking\xe2\x80\x99s progress. Choose a proposed rulemaking\nand sign up for email alerts on the proposed rulemaking.\n7. Draft a comment on a proposed rulemaking that you find on Regulations.gov and identify the\nrulemaking for which the comment is being submitted. DO NOT SUBMIT THE COMMENT\nONLINE!! Think about the \xe2\x80\x9cTips for Submitting Effective Comments\xe2\x80\x9d as you draft your comment.\n\n57\n\n\x0cB.\n\nAdjudication Procedures\n\nJust as the APA establishes minimum procedural requirements for federal agency\nrulemaking, it also establishes minimum procedural requirements for adjudication. As with\nrulemaking, the APA creates distinct procedural requirements for formal adjudication and\nfor informal adjudication. See 5 U.S.C. \xc2\xa7 554. The APA requirements for formal\nadjudication are similar to the requirements for formal rulemaking and include a trial-type\nhearing before an administrative law judge, who makes a decision based on a record\npresented at the hearing. See 5 U.S.C. \xc2\xa7\xc2\xa7 554, 556 - 557.\nIn contrast to the requirements for formal adjudication, the APA includes minimal\nrequirements for informal adjudication. If an agency is denying a written application,\npetition or request of a person, the statute requires the agency to give the person \xe2\x80\x9cprompt\nnotice\xe2\x80\x9d and \xe2\x80\x9ca brief statement of the grounds for denial.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 555(e). The APA does\nnot include any other procedural requirements for informal adjudication, but FOIA requires\nagencies to \xe2\x80\x9cmake available for public inspection and copying\xe2\x80\x9d any \xe2\x80\x9cfinal opinions ... as well\nas orders, made in the adjudication of cases.\xe2\x80\x9d Id. \xc2\xa7 552(a)(2)(A).\nAgencies must follow the APA\xe2\x80\x99s formal adjudication procedures whenever a statute\nrequires the agency to make a decision in adjudication \xe2\x80\x9con the record after opportunity for\nan agency hearing.\xe2\x80\x9d See 5 U.S.C. \xc2\xa7 554(a). Although formal adjudication is much more\ncommon than formal rulemaking, courts have not interpreted the Clean Water Act to require\nthe Corps or EPA to use formal adjudication procedures when taking most actions involving\nwetland regulation under the Clean Water Act, including issuing or denying permits, vetoing\npermits, or approving or denying a state\xe2\x80\x99s request to assume federal permitting authority.\nHowever, the agencies must use formal adjudication procedures when they are imposing\nClass II penalties, the most severe form of administrative penalties that the Clean Water\nAct authorizes. See 33 U.S.C. \xc2\xa7 1319(g)(2)(B).\n\n58\n\n\x0cHypotheticals\n1. 33 U.S.C. \xc2\xa7 1361 provides that "[t]he [EPA] Administrator is authorized to prescribe\nsuch regulations as are necessary to carry out his functions under [the Clean Water\nAct.]" If EPA planned to issue rules under the Clean Water Act to define the undefined\nstatutory term "waters of the United States", would the agency be required to follow the\ntrial-type procedures in 5 U.S.C. \xc2\xa7\xc2\xa7 556 and 557 when issuing those rules?\n2. 33 U.S.C. \xc2\xa7 1317(b)(1) provides that "[t]he [EPA] Administrator shall, within one\nhundred and eighty days after October 18, 1972, and from time to time thereafter,\npublish proposed regulations establishing pretreatment standards for ... [sewage\ntreatment plants]. Not later than ninety days after such publication, and after\nopportunity for public hearing, the Administrator shall promulgate such pretreatment\nstandards. ..." Does the statute require EPA to use formal rulemaking procedures or\nnotice and comment rulemaking when promulgating pretreatment standards?\n3. 33 U.S.C. \xc2\xa7 1344(a) provides that "[t]he Secretary [of the Army] may issue permits,\nafter notice and opportunity for public hearings for the discharge of dredged or fill\nmaterial into the navigable waters at specified disposal sites." Does the statute require\nthe Secretary to follow the trial-type procedures in 5 U.S.C. \xc2\xa7\xc2\xa7 556 and 557 when\nissuing permits?\n4. 33 U.S.C. 1344(i), which focuses on federal oversight of states that have taken over\nadministration of the Clean Water Act Section 404 permitting program, provides that\n"Whenever the Administrator determines after public hearing that a State is not\nadministering a program approved under ... this section, in accordance with this\nsection, the Administrator shall so notify the State, and if appropriate corrective action\nis not taken within a reasonable time, ... the Administrator shall ... withdraw approval of\nsuch program until the Administrator determines such corrective action has been\ntaken..." Does the statute require EPA to use formal adjudication procedures when\ndetermining that a State is not administering a permitting program in accordance with\nSection 404 of the Clean Water Act? Does the statute require EPA to use formal\nadjudication procedures when determining that the State has taken corrective action\nand may take over administration of the permitting program again?\n\nIV.\n\nJudicial Review of Agency Action\n\nA.\n\nPrerequisites for a judicial challenge\n\nIn order to challenge an agency action in court, a litigant must generally demonstrate, at a\nminimum, that: (1) the action is reviewable; (2) the court has jurisdiction to hear the\nlitigant\xe2\x80\x99s challenge and grant the requested relief; (3) the government has waived\nsovereign immunity and authorized the suit; and (4) the litigant has standing to sue.\n59\n\n\x0cIn addition to establishing minimum procedural requirements for federal agencies, the APA\ncreates the general framework for judicial review of federal agency actions. It provides that\na \xe2\x80\x9cfinal agency action for which there is no other adequate remedy in a court ..[is] subject to\njudicial review,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 704, and \xe2\x80\x9c[a] person suffering legal wrong because of agency\naction, or adversely affected or aggrieved by agency action within the meaning of a\nrelevant statute, is entitled to judicial review thereof.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 702. As a result, \xe2\x80\x9cfinal\nagency actions\xe2\x80\x9d are presumptively reviewable in court. Chapter 10 of this book outlines\nthe actions of the Corps and EPA that are \xe2\x80\x9cfinal agency actions\xe2\x80\x9d that are reviewable under\nthe APA. The APA\xe2\x80\x99s judicial review provisions, including the presumption of reviewability,\ndo not apply when a statute precludes judicial review or when an agency action is\ncommitted to agency discretion by law, see 5 U.S.C. \xc2\xa7 701(a), but neither of those\nexceptions have significantly limited judicial review of the EPA\xe2\x80\x99s or the Corps\xe2\x80\x99 actions in\nimplementing the federal wetlands protection program. Those exceptions are examined in\nmore detail in Chapter 10 of this book.\nThe APA does not grant subject matter jurisdiction to any court to hear the challenges\nthat it makes reviewable, so litigants must rely on another statute to demonstrate\njurisdiction. If the statute that authorizes the agency to take the action that a litigant wants\nto challenge does not include a provision that grants jurisdiction to a court to hear\nchallenges to that action, litigants can frequently rely on 28 U.S.C. \xc2\xa7 1331 (the general\nfederal question jurisdiction statute) or other general jurisdictional statutes to establish\njurisdiction for their lawsuit. The general federal question jurisdiction statute provides \xe2\x80\x9c[t]he\ndistrict courts shall have original jurisdiction of all civil actions arising under the Constitution,\nlaws, or treaties of the United States.\xe2\x80\x9d Id. Although the Clean Water Act includes a judicial\nreview provision that explicitly authorizes courts to review EPA actions outside of the\nwetlands context, litigants must generally rely on 28 U.S.C. \xc2\xa7 1331 to establish jurisdiction\nto challenge actions of EPA and the Corps in administering the federal wetlands protection\nprogram. However, if a litigant is challenging the government\xe2\x80\x99s action as an unconstitutional\n\xe2\x80\x9ctaking\xe2\x80\x9d of property, federal statutes grant jurisdiction to the Court of Federal Claims or\nfederal district courts (depending on the amount in controversy) to hear those challenges.\nSee 28 U.S.C. \xc2\xa7\xc2\xa7 1346, 1491. Takings claims are discussed at length in Chapter 11 of this\nbook.\nThe general federal question jurisdiction statute does not waive the government\xe2\x80\x99s\nsovereign immunity, but the APA waives sovereign immunity to the extent that a litigant is\nseeking declaratory and injunctive relief, as opposed to money damages. See 5 U.S.C.\n\xc2\xa7 702. In the wetlands context, litigants that are challenging actions of the Corps or EPA\nare generally seeking declaratory or injunctive relief, rather than money damages, so the\nAPA waiver of sovereign immunity is sufficient for their challenges. When litigants are\nchallenging federal agency actions as a \xe2\x80\x9ctaking\xe2\x80\x9d of their property, the statutes that grant the\ncourt jurisdiction to hear those claims waive sovereign immunity of the government for the\nmoney damages authorized by those statutes.\n60\n\n\x0cAs noted above, in addition to demonstrating reviewability, jurisdiction, and a waiver of\nsovereign immunity, litigants must demonstrate that they have standing to sue. Chapter 10\nof this book discusses the standing requirement, as well as other limits on judicial review,\nincluding mootness, ripeness, and statutes of limitation.\nB.\n\nStandards for judicial review\n\nAlthough Congress can vary the standards for review of agency actions, the APA\nestablishes standards that generally apply to judicial review of agency actions under that\nstatute. Specifically, the APA provides that a reviewing court shall:\n(2)\n\nhold unlawful and set aside agency action, findings, and conclusions\nfound to be\n(A)\narbitrary, capricious, an abuse of discretion, or otherwise not\nin accordance with law;\n(B)\ncontrary to constitutional right, power, privilege, or immunity;\n(C)\nin excess of statutory jurisdiction, authority, or limitations, or\nshort of statutory right;\n(D)\nwithout observance of procedure required by law;\n(E)\nunsupported by substantial evidence in a case subject to\nsections 556 and 557 of this title or otherwise reviewed on the\nrecord of an agency hearing provided by statute; or\n(F)\nunwarranted by the facts to the extent that the facts are\nsubject to trial de novo by the reviewing court.\xe2\x80\x9d\n\n5 U.S.C. \xc2\xa7 706.\nThe standard that applies most frequently on judicial review of an agency\xe2\x80\x99s action is the\narbitrary and capricious standard. The standard applies to all factual determinations\nmade by agencies outside of formal hearing procedures, as well as policy determinations\nmade by agencies. It is a narrow standard of review, which focuses on whether the agency\ndecision \xe2\x80\x9cwas based on a consideration of relevant factors and whether there has been a\nclear error of judgment...\xe2\x80\x9d See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.\n402, 416 (1971). As a result, if an agency does not explain its decision, ignores relevant\nfactors in reaching its decision, or makes a decision that seems clearly unreasonable in\nlight of the information considered by the agency, a court will find that the agency\xe2\x80\x99s action is\narbitrary and capricious. When an agency is making determinations \xe2\x80\x9cwithin its special\nexpertise, at the frontiers of science,\xe2\x80\x9d the Supreme Court has counseled that a reviewing\ncourt \xe2\x80\x9cmust generally be at its most deferential.\xe2\x80\x9d See Baltimore Gas & Electric Co. v.\nNatural Resources Defense Council, 462 U.S. 87, 103 (1983).\nAlthough the standard is quite deferential, courts reviewing an agency\xe2\x80\x99s policy\n61\n\n\x0cdeterminations occasionally apply a more rigorous, less deferential version of the standard,\nreferred to as \xe2\x80\x9chard look\xe2\x80\x9d arbitrary and capricious review. For instance, in Motor Vehicle\nManufacturers Assoc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983),\nthe Supreme Court held that an agency decision is arbitrary and capricious if \xe2\x80\x9cthe agency\nhas relied on factors which Congress has not intended it to consider, entirely failed to\nconsider an important aspect of the problem, offered an explanation for its decision that\nruns counter to the evidence, or is so implausible that it could not be ascribed to a\ndifference in view or the product of agency expertise.\xe2\x80\x9d\nRegardless of whether a reviewing court is applying a \xe2\x80\x9chard look\xe2\x80\x9d standard or the traditional\narbitrary and capricious standard, the court will not substitute its judgment for the agency\nand will normally not make a decision in place of the agency when the court determines\nthat the agency\xe2\x80\x99s decision is arbitrary and capricious. See Securities and Exchange\nCommission v. Chenery Corp., 318 U.S. 80 (1943). Instead, in those cases, the reviewing\ncourt will routinely remand the dispute back to the agency to resolve. Id.\nWhile the arbitrary and capricious standard is ubiquitous in judicial review of agency action,\nit does not generally apply to review of an agency\xe2\x80\x99s legal interpretation of a statute. The\nfollowing landmark administrative law decision addresses that issue.\nChevron v. Natural Resources Defense\nCouncil\n\nResources for the Case\nUnedited Opinion (From Justia)\nOral Argument (from the Oyez Project)\nGoogle Map of all the Cases in the Course Source\n\n467 U.S. 837 (1984)\nJUSTICE STEVENS delivered the opinion of\nthe Court.\n\nIn the Clean Air Act Amendments of 1977, * * *\nCongress enacted certain requirements applicable\nto States that had not achieved the national air\nquality standards established by the Environmental\nProtection Agency (EPA) pursuant to earlier\nlegislation. The amended Clean Air Act required\nthese "nonattainment" States to establish a permit\nprogram regulating "new or modified major\nstationary sources" of air pollution. Generally, a\npermit may not be issued for a new or modified\nmajor stationary source unless several stringent\nconditions are met. * * * The EPA regulation\npromulgated to implement this permit requirement\nallows a State to adopt a plantwide definition of the\n\n62\n\nPhoto 17 By\nhttp://www.flickr.com/photos/keepitsurreal/\nhttp://commons.wikimedia.org/wiki/File:Oil_\nrefinery_canada.jpg [CC-BY-SA-2.0 )\n\n\x0cterm "stationary source."1 Under this definition, an existing plant that contains several\npollution-emitting devices may install or modify one piece of equipment without meeting the\npermit conditions if the alteration will not increase the total emissions from the plant. The\nquestion presented by these cases is whether EPA\'s decision to allow States to treat all of\nthe pollution-emitting devices within the same industrial grouping as though they were\nencased within a single "bubble" is based on a reasonable construction of the statutory\nterm "stationary source."\nThe EPA regulations containing the plantwide definition of the term stationary source were\npromulgated on October 14, 1981. * * * Respondents3 filed a timely petition for review in the\nUnited States Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. \xc2\xa7\n7607(b)(1).4 The Court of Appeals set aside the regulations. * * * The court observed that\nthe relevant part of the amended Clean Air Act "does not explicitly define what Congress\nenvisioned as a stationary source, to which the permit program . . . should apply," and\nfurther stated that the precise issue was not "squarely addressed in the legislative history."\n* * * In light of its conclusion that the legislative history bearing on the question was "at best\ncontradictory," it reasoned that "the purposes of the nonattainment program should guide\nour decision here." * * * Based on two of its precedents concerning the applicability of the\nbubble concept to certain Clean Air Act programs, * * * the court stated that the bubble\nconcept was "mandatory" in programs designed merely to maintain existing air quality, but\nheld that it was "inappropriate" in programs enacted to improve air quality. * * * Since the\npurpose of the permit program its "raison d\'etre," in the court\'s view -- was to improve air\nquality, the court held that the bubble concept was inapplicable in these cases under its\nprior precedents. * * * It therefore set aside the regulations embodying the bubble concept\n2\n\n"(i) \'Stationary source\' means any building, structure, facility, or installation which emits or\nmay emit any air pollutant subject to regulation under the Act."\n"(ii) \'Building, structure, facility, or installation\' means all of the pollutant-emitting activities\nwhich belong to the same industrial grouping, are located on one or more contiguous or\nadjacent properties, and are under the control of the same person (or persons under\ncommon control) except the activities of any vessel."\n40 C.F.R. \xc2\xa7\xc2\xa7 51.18(j)(1)(i) and (ii) (1983).\n3\n\nNational Resources Defense Council, Inc., Citizens for a Better Environment, Inc., and\nNorth Western Ohio Lung Association, Inc.\n4\n\nPetitioners, Chevron U.S.A. Inc., American Iron and Steel Institute, American Petroleum\nInstitute, Chemical Manufacturers Association, Inc., General Motors Corp., and Rubber\nManufacturers Association were granted leave to intervene and argue in support of the\nregulation.\n63\n\n\x0cas contrary to law. We granted certiorari to review that judgment, * * * and we now reverse.\nThe basic legal error of the Court of Appeals was to adopt a static judicial definition of the\nterm "stationary source" when it had decided that Congress itself had not commanded that\ndefinition. Respondents do not defend the legal reasoning of the Court of Appeals. 7\nNevertheless, since this Court reviews judgments, not opinions, * * * we must determine\nwhether the Court of Appeals\' legal error resulted in an erroneous judgment on the validity\nof the regulations.\nII\nWhen a court reviews an agency\'s construction of the statute which it administers, it is\nconfronted with two questions. First, always, is the question whether Congress has directly\nspoken to the precise question at issue. If the intent of Congress is clear, that is the end of\nthe matter; for the court, as well as the agency, must give effect to the unambiguously\nexpressed intent of Congress.9 If, however, the court determines Congress has not directly\naddressed the precise question at issue, the court does not simply impose its own\nconstruction on the statute, * * * as would be necessary in the absence of an administrative\ninterpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue,\nthe question for the court is whether the agency\'s answer is based on a permissible\nconstruction of the statute.11\n"The power of an administrative agency to administer a congressionally created . . .\nprogram necessarily requires the formulation of policy and the making of rules to fill\n7\n\nRespondents argued below that EPA\'s plantwide definition of "stationary source" is\ncontrary to the terms, legislative history, and purposes of the amended Clear Air Act. The\ncourt below rejected respondents\' arguments based on the language and legislative history\nof the Act. It did agree with respondents\xe2\x80\x99 contention that the regulations were inconsistent\nwith the purposes of the Act, but did not adopt the construction of the statute advanced by\nrespondents here. Respondents rely on the arguments rejected by the Court of Appeals in\nsupport of the judgment, and may rely on any ground that finds support in the record. * * *\n9\n\nThe judiciary is the final authority on issues of statutory construction, and must reject\nadministrative constructions which are contrary to clear congressional intent. * * * If a\ncourt, employing traditional tools of statutory construction, ascertains that Congress had an\nintention on the precise question at issue, that intention is the law, and must be given\neffect.\n11\n\nThe court need not conclude that the agency construction was the only one it permissibly\ncould have adopted to uphold the construction, or even the reading the court would have\nreached if the question initially had arisen in a judicial proceeding. * * *\n64\n\n\x0cany gap left, implicitly or explicitly, by Congress."\nMorton v. Ruiz, 415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the\nagency to fill, there is an express delegation of authority to the agency to elucidate a\nspecific provision of the statute by regulation. Such legislative regulations are given\ncontrolling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.\n* * * Sometimes the legislative delegation to an agency on a particular question is implicit,\nrather than explicit. In such a case, a court may not substitute its own construction of a\nstatutory provision for a reasonable interpretation made by the administrator of an agency.\n***\nWe have long recognized that considerable weight should be accorded to an executive\ndepartment\'s construction of a statutory scheme it is entrusted to administer, * * * and the\nprinciple of deference to administrative interpretations\n"has been consistently followed by this Court whenever decision as to the meaning\nor reach of a statute has involved reconciling conflicting policies, and a full\nunderstanding of the force of the statutory policy in the given situation has depended\nupon more than ordinary knowledge respecting the matters subjected to agency\nregulations. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190;\nLabor Board v. Hearst Publications, Inc., 322 U.S. 111; Republic Aviation Corp. v.\nLabor Board, 324 U.S. 793; Securities & Exchange Comm\'n v. Chenery Corp., 332\nU.S. 194; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344. . . . If this choice\nrepresents a reasonable accommodation of conflicting policies that were committed\nto the agency\'s care by the statute, we should not disturb it unless it appears from\nthe statute or its legislative history that the accommodation is not one that Congress\nwould have sanctioned."\nUnited States v. Shimer, 367 U.S.374, 367 U.S. 382, 383 (1961). * * *\nIn light of these well-settled principles, it is clear that the Court of Appeals misconceived the\nnature of its role in reviewing the regulations at issue. Once it determined, after its own\nexamination of the legislation, that Congress did not actually have an intent regarding the\napplicability of the bubble concept to the permit program, the question before it was not\nwhether, in its view, the concept is "inappropriate" in the general context of a program\ndesigned to improve air quality, but whether the Administrator\'s view that it is appropriate in\nthe context of this particular program is a reasonable one. Based on the examination of the\nlegislation and its history which follows, we agree with the Court of Appeals that Congress\ndid not have a specific intention on the applicability of the bubble concept in these cases,\nand conclude that the EPA\'s use of that concept here is a reasonable policy choice for the\nagency to make. * * *\nVII\n65\n\n\x0c* * * We are not persuaded that parsing of general terms in the text of the statute will reveal\nan actual intent of Congress. * * *\nLegislative History\nIn addition, respondents argue that the legislative history and policies of the Act foreclose\nthe plantwide definition, and that the EPA\'s interpretation is not entitled to deference,\nbecause it represents a sharp break with prior interpretations of the Act.\nBased on our examination of the legislative history, we agree with the Court of Appeals that\nit is unilluminating. * * * We find that the legislative history as a whole is silent on the\nprecise issue before us. It is, however, consistent with the view that the EPA should have\nbroad discretion in implementing the policies of the 1977 Amendments.\nMore importantly, that history plainly identifies the policy concerns that motivated the\nenactment; the plantwide definition is fully consistent with one of those concerns -- the\nallowance of reasonable economic growth -- and, whether or not we believe it most\neffectively implements the other, we must recognize that the EPA has advanced a\nreasonable explanation for its conclusion that the regulations serve the environmental\nobjectives as well. * * * Indeed, its reasoning is supported by the public record developed\nin the rulemaking process, * * * as well as by certain private studies. * * *\nOur review of the EPA\'s varying interpretations of the word "source" -- both before and after\nthe 1977 Amendments -- convinces us that the agency primarily responsible for\nadministering this important legislation has consistently interpreted it flexibly -- not in a\nsterile textual vacuum, but in the context of implementing policy decisions in a technical\nand complex arena. The fact that the agency has from time to time changed its\ninterpretation of the term "source" does not, as respondents argue, lead us to conclude that\nno deference should be accorded the agency\'s interpretation of the statute. An initial\nagency interpretation is not instantly carved in stone. On the contrary, the agency, to\nengage in informed rulemaking, must consider varying interpretations and the wisdom of its\npolicy on a continuing basis. Moreover, the fact that the agency has adopted different\ndefinitions in different contexts adds force to the argument that the definition itself is\nflexible, particularly since Congress has never indicated any disapproval of a flexible\nreading of the statute. * * *\nPolicy\nThe arguments over policy that are advanced in the parties\' briefs create the impression\nthat respondents are now waging in a judicial forum a specific policy battle which they\nultimately lost in the agency and in the 32 jurisdictions opting for the "bubble concept," but\none which was never waged in the Congress. Such policy arguments are more properly\n66\n\n\x0caddressed to legislators or administrators, not to judges.38\nIn these cases, the Administrator\'s interpretation represents a reasonable accommodation\nof manifestly competing interests, and is entitled to deference: the regulatory scheme is\ntechnical and complex, * * * the agency considered the matter in a detailed and reasoned\nfashion, * * * and the decision involves reconciling conflicting policies. * * * Congress\nintended to accommodate both interests, but did not do so itself on the level of specificity\npresented by these cases. Perhaps that body consciously desired the Administrator to\nstrike the balance at this level, thinking that those with great expertise and charged with\nresponsibility for administering the provision would be in a better position to do so; perhaps\nit simply did not consider the question at this level; and perhaps Congress was unable to\nforge a coalition on either side of the question, and those on each side decided to take their\nchances with the scheme devised by the agency. For judicial purposes, it matters not which\nof these things occurred.\nJudges are not experts in the field, and are not part of either political branch of the\nGovernment. Courts must, in some cases, reconcile competing political interests, but not on\nthe basis of the judges\' personal policy preferences. In contrast, an agency to which\nCongress has delegated policymaking responsibilities may, within the limits of that\ndelegation, properly rely upon the incumbent administration\'s views of wise policy to inform\nits judgments. While agencies are not directly accountable to the people, the Chief\nExecutive is, and it is entirely appropriate for this political branch of the Government to\nmake such policy choices -- resolving the competing interests which Congress itself either\ninadvertently did not resolve, or intentionally left to be resolved by the agency charged with\nthe administration of the statute in light of everyday realities.\nWhen a challenge to an agency construction of a statutory provision, fairly conceptualized,\nreally centers on the wisdom of the agency\'s policy, rather than whether it is a reasonable\nchoice within a gap left open by Congress, the challenge must fail. In such a case, federal\njudges -- who have no constituency -- have a duty to respect legitimate policy choices\nmade by those who do. The responsibilities for assessing the wisdom of such policy\nchoices and resolving the struggle between competing views of the public interest are not\njudicial ones: "Our Constitution vests such responsibilities in the political branches." TVA v.\n38\n\nRespondents point out if a brand new factory that will emit over 100 tons of pollutants is\nconstructed in a nonattainment area, that plant must obtain a permit pursuant to \xc2\xa7\n172(b)(6), and, in order to do so, it must satisfy the \xc2\xa7 173 conditions, including the LAER\nrequirement. Respondents argue if an old plant containing several large emitting units is to\nbe modernized by the replacement of one or more units emitting over 100 tons of pollutant\nwith a new unit emitting less -- but still more than 100 tons -- the result should be no\ndifferent simply because "it happens to be built not at a new site, but within a preexisting\nplant." * * *\n67\n\n\x0cHill, 437 U.S. 153, 195 (1978).\nWe hold that the EPA\'s definition of the term "source" is a permissible construction of the\nstatute which seeks to accommodate progress in reducing air pollution with economic\ngrowth.\n"The Regulations which the Administrator has adopted provide what the agency could\nallowably view as . . . [an] effective reconciliation of these twofold ends. . . ." United States\nv. Shimer, 367 U.S. at 383.\nThe judgment of the Court of Appeals is reversed.\nIt is so ordered.\nQuestions and Comments\n1.\n\nThe Bubble: Under the Clean Air Act, at the time of the decision, construction of a\nnew major \xe2\x80\x9cstationary source\xe2\x80\x9d or \xe2\x80\x9cmodification\xe2\x80\x9d of a major \xe2\x80\x9cstationary source\xe2\x80\x9d in an\narea of a state that was not meeting air quality standards (\xe2\x80\x9cnonattainment\xe2\x80\x9d) required\na permit and compliance with stringent technology-based air pollution limits. Not\nevery change in a stationary source, however, constituted a \xe2\x80\x9cmodification.\xe2\x80\x9d A\nchange only constituted a \xe2\x80\x9cmodification\xe2\x80\x9d if it resulted in the emission of a new\npollutant or an increase in emissions of existing pollutants. Therefore, as noted in\nfootnote 38 above, therefore, by defining \xe2\x80\x9cstationary source\xe2\x80\x9d to include an entire\nplant, an industrial facility could avoid the permitting and new technology\nrequirements of the statute by replacing existing parts of a factory that are emitting\npollution with new parts, as long as the new parts emitted the same or less pollution\nas the existing parts, since the facility would not be \xe2\x80\x9cmodifying\xe2\x80\x9d a source. If,\nhowever, each part of the facility that emitted pollution were defined as a separate\n\xe2\x80\x9csource,\xe2\x80\x9d the construction of a new part would be construction of a \xe2\x80\x9cstationary\nsource\xe2\x80\x9d which could (if it were a major stationary source) trigger the permitting and\nnew technology requirements, regardless of whether any other portions of the facility\nwere being retired. Why do you think that NRDC opposed the bubble concept, and\nwhy did Chevron favor it?\n\n2.\n\nThe Two Step: The Court created a two-step test that is frequently used to review\nagencies\xe2\x80\x99 legal interpretations of statutory terms. At step one, Justice Stevens\nsuggests that courts must ask \xe2\x80\x9cwhether Congress has directly spoken to the precise\nquestion at issue.\xe2\x80\x9d Is the Court applying a clear statement test at step one? If so, is\nthe Court\xe2\x80\x99s review limited to the language of the statute, or can it consider the\nlegislative history or purpose of the statute as well?\n\n68\n\n\x0c3.\n\nStep Two: If a court determines, at step one, that the statute is silent or ambiguous,\nthen Chevron directs the court to defer to the agency\xe2\x80\x99s interpretation as long as it is\n\xe2\x80\x9cbased on a permissible construction of the statute.\xe2\x80\x9d Subsequent cases routinely\nrephrase step two to provide that courts should defer to the agency\xe2\x80\x99s interpretation\nas long as it is reasonable. In practice, courts almost always uphold agency\ninterpretations at step two. Consequently, most of the battles in Chevron cases are\nfought based on statutory construction principles at step one.\n\n4.\n\nAgency Change in Position: The Court noted that EPA did not always interpret the\nterm \xe2\x80\x9cstationary source\xe2\x80\x9d to encompass the \xe2\x80\x9cbubble concept\xe2\x80\x9d and that the agency\nhad previously interpreted the term to apply to separate units within a plant. Does\nthe agency\xe2\x80\x99s change in position make its decision unreasonable at step two? Would\nthe result have been the same if the agency had changed its interpretation several\ntimes prior to adopting the regulations that were challenged in this case? Would the\nresult have been the same if the agency did not explain why it had changed its\ninterpretation of the term \xe2\x80\x9cstationary source\xe2\x80\x9d?\n\n5.\n\nReason for Deference: In crafting a decision for a unanimous Court, Justice\nStevens identified several different reasons why deference to an agency\xe2\x80\x99s\ninterpretation is warranted, including: (a) Congress intended that the agency should\nresolve the issue; (b) agencies have specialized expertise to resolve the issue; and\n(c) agencies are politically accountable through the democratic process. In\ndetermining how far Chevron applies outside of the context in which the case arose,\ncourts have struggled to determine whether one rationale carries more weight than\nothers.\n\n6.\n\nReach of Chevron: Chevron involved the review of an agency\xe2\x80\x99s interpretation of a\nstatutory term when the agency had interpreted the term as a legislative rule through\nnotice-and-comment rulemaking. Sixteen years later, in Christensen v. Harris\nCounty, 529 U.S. 576 (2000), the Supreme Court held that courts should generally\nnot apply Chevron when reviewing an agency\xe2\x80\x99s interpretation of a statute through a\nnon-legislative rule, such as a guidance document, policy statement, or\ninterpretative rule. The following year, in United States v. Mead Corp., 533 U.S. 218\n(2001), the Court held that Chevron did not apply to review of a letter ruling issued\nby the U.S. Customs Service. The Court provided some general guidance regarding\nwhen Chevron should apply. Specifically, the Court indicated that Chevron applies\n\xe2\x80\x9cwhen it appears that Congress delegated authority to the agency generally to make\nrules carrying the force of law, and that the agency interpretation claiming\ndeference was promulgated in the exercise of that authority.\xe2\x80\x9d Id. at 226-227\n(emphasis added). The Court suggested that an agency could show the necessary\ndelegation of authority \xe2\x80\x9cin a variety of ways, as by an agency\xe2\x80\x99s power to engage in\nadjudication or notice and comment rulemaking, or by some other indication of a\ncomparable congressional intent.\xe2\x80\x9d Id. at 227. A year later, in Barnhart v. Walton, 535\n69\n\n\x0cU.S. 212, 222 (2002), the Court confused the analysis more, suggesting that in\ndetermining whether Chevron applies, courts should also consider \xe2\x80\x9cthe interstitial\nnature of the legal question, the related expertise of the Agency, the importance of\nthe question to administration of the statute, the complexity of that administration,\nand the careful consideration the agency has given the question over a long period\nof time.\xe2\x80\x9d Although the Court\xe2\x80\x99s Chevron jurisprudence is very complex, it is probably\nsafe to assume that when a court is reviewing a legislative rule adopted by an\nagency through formal or informal rulemaking, or is reviewing a decision that an\nagency has made through formal adjudication, the court will apply Chevron. It is also\nprobably safe to assume that in most cases, when a court is reviewing an agency\xe2\x80\x99s\nnon-legislative rule, the court will not apply Chevron (although the Court has left the\ndoor open to the possibility that Chevron might apply in a specific case). It is hard to\nreach a similar broad conclusion regarding whether a court will apply Chevron to a\ndecision made by an agency in the context of informal adjudication. The answer will\nlie in the ultimate clarification of the Court\xe2\x80\x99s decisions in Mead and Barnhart.\n7.\n\nSkidmore: If a court reviewing an agency\xe2\x80\x99s legal interpretation does not use the\nChevron analysis, that does not mean that the court will review the statutory\ninterpretation question de novo. Agencies are still accorded deference under an\nearlier Supreme Court decision, although the deference is weaker than Chevron\ndeference. In Skidmore v. Swift, the Supreme Court, reviewing a decision of the\nAdministrator of the Department of Labor\xe2\x80\x99s Wage and Hour Division, held that:\nthe rulings, interpretations and opinions of the Administrator under this Act,\nwhile not controlling upon the courts by reason of their authority, do\nconstitute a body of experience and informed judgment to which courts and\nlitigants may properly resort for guidance. The weight of such a judgment in a\nparticular case will depend upon the thoroughness evident in its\nconsideration, the validity of its reasoning, its consistency with earlier and\nlater pronouncements, and all those factors which give it power to persuade,\nif lacking power to control.\n323 U.S. 134, 140 (1944).\n\n8.\n\nAgency interpretations of agency regulations: Chevron involved judicial review of\nan agency\xe2\x80\x99s interpretation of a statute. However, agencies occasionally adopt\nregulations that are ambiguous and need to be interpreted further. When a court\nreviews an agency\xe2\x80\x99s interpretation of its own regulations, rather than the\ninterpretation of a statute, courts accord the agency an even greater level of\ndeference than Chevron deference. In Auer v. Robins, 519 U.S. 452, 461 (1997),\nthe Supreme Court held that courts should uphold an agency\xe2\x80\x99s interpretation of its\nregulations unless it is \xe2\x80\x9cplainly erroneous or inconsistent with the regulation.\xe2\x80\x9d\n\n70\n\n\x0cHypotheticals\n1. Focusing on the same statutory language that was interpreted in Chevron, assume, for\npurposes of this hypothetical, that EPA did not promulgate a regulation that allowed states to\nadopt a plant-wide definition of "stationary source." Instead of adopting a regulation, EPA adopted\na "policy statement" that indicated that states could adopt a plant-wide definition of "stationary\nsource". The agency adopted the policy statement because it was not fully committed to that\ninterpretation of the statute and wanted to consider the matter further before issuing a regulation\nto define the term. Nevertheless, EPA published the policy statement in the Federal Register and\nposted it on its website. If NRDC were able to challenge EPA\'s policy statement, should a court\nreview the agency\'s interpretation of the statute under the Chevron analysis or some other\nanalysis?\n2. Focusing on the same statutory language that was interpreted in Chevron, assume that EPA\ndid not promulgate a regulation that allowed states to adopt a plant-wide definition of "stationary\nsource" and assume that they did not adopt a policy statement to that effect either. Assume that\nthey did not provide any direction to states or regulated industries regarding the definition of\n"stationary source." Instead, assume that EPA began an administrative penalty proceeding (an\ninformal process) against Chevron alleging that Chevron was violating the Clean Air Act because\nit had not sought a permit for modifications to its refinery. In the context of that informal\nadministrative proceeding, EPA announced that it was interpreting the term "stationary source" to\nmean each smokestack in a plant. If Chevron appealed EPA\'s decision to court, would the\nreviewing court apply the Chevron analysis to EPA\'s interpretation of "stationary source" or would\nthe court apply some other analysis?\n3. Focusing on the same statutory language that was interpreted in Chevron, assume that EPA\nadopted the regulations that it adopted in Chevron, allowing States to adopt a plant-wide definition\nof "stationary source." Assume, however, that the regulations were ambiguous regarding whether\na "plant-wide" definition could incorporate smokestacks that were located a mile away from the\nplant (but were related to the process at the plant), and that EPA began an administrative penalty\nproceeding against Chevron when Chevron made changes to the off-site processes that\nincreased pollution from an off-site smokestack without obtaining a permit, because the agency\ndetermined that the term "stationary source" should not include off-site stacks. If Chevron\nappealed EPA\'s decision to court, would the reviewing court apply the Chevron analysis to EPA\'s\ninterpretation of "stationary source" or would the court apply some other analysis?\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 3, why not try a CALI lesson on the material at:\nhttp://cca.li/PS. It should take about 20 minutes.\n\n71\n\n\x0cChapter 4\nRegulation of Wetlands and Waters of\nthe United States\nI.\n\nActivities Regulated Under the Clean Water Act\n\nA. The Rivers and Harbors Act\nClean Water Act, federal regulation of wetlands\nwas generally limited to regulation under the Rivers\nand Harbors Appropriation Act of 1899, 33 U.S.C.\n\xc2\xa7 401, et. seq. Section 10 of the Act prohibits\nobstruction of navigable waters except in\naccordance with a permit issued by the Corps of\nEngineers, see 33 U.S.C. \xc2\xa7 403, and Section 13 of\nthe Act prohibits the deposit of refuse into the\nnavigable waters. See 33 U.S.C. \xc2\xa7 407. As\nexplored further later in this chapter, though, the\nmain focus of the statute was, and remains,\nprotection of navigability of the nation\xe2\x80\x99s waters.\nThe statutory definition of \xe2\x80\x9cnavigable waters\xe2\x80\x9d is Photo 18 Corps of Engineers photo driven by that focus, ands limited to waters that are http://commons.wikimedia.org/wiki/File:Two\n\xe2\x80\x9csubject to the ebb and flow of the tide and/or are _Harbors_Minnesota_aerial_view.jpg\npresently used, or have been used in the past, or may be susceptible for use to transport\ninterstate or foreign commerce.\xe2\x80\x9d 33 C.F.R. \xc2\xa7 329.4. As a result, very few wetlands were or\nare regulated as \xe2\x80\x9cnavigable waters\xe2\x80\x9d under the Rivers and Harbors Act.\nB.\n\nThe Clean Water Act\n\nWhen Congress adopted the Federal Water Pollution Control Act Amendments of 1972,\nthough, it greatly expanded federal regulation over a broad range of activities in wetlands\nand other waters, with a focus on protecting water quality rather than protecting navigation.\nSee 33 U.S.C. \xc2\xa7 1251(a) (providing that the objectives of the Act are to \xe2\x80\x9crestore and\nmaintain the chemical, physical, and biological integrity of the Nation\xe2\x80\x99s waters\xe2\x80\x9d). Indeed, in\nthe Act, Congress established, as a national goal, \xe2\x80\x9cthat the discharge of pollutants into the\nnavigable waters be eliminated by 1985.\xe2\x80\x9d Id. \xc2\xa7 1251(a)(1).\n72\n\n\x0cSection 301: Perhaps the most important provision of the statute, for purposes of federal\nregulation of wetlands and other waters, is Section 301, which prohibits \xe2\x80\x9cthe discharge of\nany pollutant by any person\xe2\x80\x9d except in compliance with Section 301 and with several other\nsections of the statute, including the sections that create the federal permitting programs for\npoint source discharges and discharges into wetlands. 33 U.S.C. \xc2\xa7 1311(a). The statute\nfurther defines \xe2\x80\x9cthe discharge of a pollutant\xe2\x80\x9d to mean the \xe2\x80\x9caddition of any pollutant to\nnavigable waters from any point source\xe2\x80\x9d. 33 U.S.C. \xc2\xa7 1362(12).\nAs a result, Section 301 requires permits and compliance with the other requirements of\nSection 301 for an activity if all of the following requirements are met:\nTriggers for Section 301 prohibition\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nthere is an addition\nof a pollutant\nfrom a point source\ninto the navigable waters\nby a person\n\n402 and 404 Permit Programs: The Clean Water Act creates two separate permit\nprograms to regulate discharges of pollutants into navigable waters. While the Section 402\npermit program, administered by EPA and the states, is the primary permitting program for\npoint source discharges of pollution into the navigable waters, see 33 U.S.C. \xc2\xa7 1342, most\nactivities involving wetlands are governed by the Section 404 permit program. See 33\nU.S.C. \xc2\xa7 1344. Section 404 authorizes the Corps, rather than EPA, to issue permits when\nthe regulated activity involves the \xe2\x80\x9cdischarge of dredged or fill material into the navigable\nwaters at specified disposal sites.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(a), Nevertheless, EPA plays an\nimportant role in that permitting process, see 33 U.S.C. \xc2\xa7 1344(b)-(c). In order for the\nfederal government to have Section 404 jurisdiction over an activity in wetlands, therefore,\nthere must be a \xe2\x80\x9cdischarge of dredged or fill material\xe2\x80\x9d into \xe2\x80\x9cnavigable waters.\xe2\x80\x9d\nTriggers for 404 Jurisdiction\n\xef\x82\xb7\n\xef\x82\xb7\n\nthere is a discharge of dredged or fill material\ninto the navigable waters\n\nWhen wetlands are ditched, drained, filled or otherwise altered, several of the prerequisites for regulation under sections 301 and 404 are easily met.\n73\n\n\x0cPoint source: For instance, the Clean Water Act defines\n\xe2\x80\x9cpoint source\xe2\x80\x9d very broadly as \xe2\x80\x9cany discernible, confined and\ndiscrete conveyance, including but not limited to any pipe,\nditch, channel, tunnel, conduit, well, discrete fissure,\ncontainer, rolling stock, concentrated animal feeding\noperation, or vessel or other floating craft, from which\npollutants are or may be discharged.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(14).\nDitching, draining, or filling activities in wetlands usually\ninvolve heavy construction equipment, such as backhoes,\nexcavators, or loaders, which clearly are \xe2\x80\x9cdiscernible,\nconfined and discrete\nconveyances.\xe2\x80\x9d\n\nPhoto 20 USFWS Photo\nhttp://commons.wikimedia.org/wiki/\nFile:Rolling_fill_material.jpg\n\nPhoto 19 B frankenstoen (Flickr:\nbackhoe)\nhttp://commons.wikimedia.org/wi\nki/File:Case_backhoe_loader.jpg\n[CC-BY-2.0]\n\nPollutant: Similarly, the statute defines \xe2\x80\x9cpollutant\xe2\x80\x9d to\ninclude \xe2\x80\x9cdredged spoil, solid waste, incinerator residue,\nsewage, garbage, sewage sludge, munitions, chemical\nwastes, biological materials, radioactive materials, heat,\nwrecked or discarded equipment, rock, sand, cellar dirt\nand industrial, municipal, and agricultural waste\ndischarged into water.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(6). Normally,\nactivities impacting wetlands involve the placement, in\nwetlands, of rocks, soil, silt, organic debris or similar\nmaterials, all of which fit comfortably within the definition\nof \xe2\x80\x9cpollutant.\xe2\x80\x9d\n\nPerson: The statute also defines \xe2\x80\x9cperson\xe2\x80\x9d very broadly to include \xe2\x80\x9can individual,\ncorporation, partnership, association, State, municipality, commission, or political\nsubdivision of a State, or any interstate body.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(5). As a result, when\nwetlands are ditched, drained, filled or otherwise altered, it is normally not very difficult to\ndemonstrate that the activity was undertaken by a \xe2\x80\x9cperson.\xe2\x80\x9d\nConsequently, whether Section 301 prohibits ditching, draining, filling or otherwise\nimpairing wetlands usually depends on whether the activity at issue involves an addition of\na pollutant and whether the wetlands at issue are navigable waters. Similarly, whether the\nfederal government has jurisdiction under Section 404 over such activities impacting\nwetlands usually depends on whether the activity involves a discharge of dredged or fill\nmaterial and whether the wetlands at issue are navigable waters. Section II of this\nChapter examines the scope of the federal government\xe2\x80\x99s jurisdiction over navigable\nwaters at length, and Chapter 5 focuses on which activities in wetlands have been held to\ninvolve the addition of pollutants or the discharge of dredged or fill material.\nAs Section II of this Chapter will describe, the Corps and EPA have defined the statutory\n74\n\n\x0cterm \xe2\x80\x9cnavigable waters\xe2\x80\x9d to include certain wetlands. Before turning to a closer examination\nof the scope of federal jurisdiction over navigable waters, therefore, it may be helpful to\nexamine the federal government\xe2\x80\x99s regulatory approach to defining and identifying wetlands\nin more detail.\nC.\n\nIdentifying and Delineating Wetlands\n\nDefinitions: Although the Clean Water Act does not include a statutory definition for\n\xe2\x80\x9cwetlands,\xe2\x80\x9d both EPA and the Corps have adopted regulations that define \xe2\x80\x9cwetlands\xe2\x80\x9d as\nfollows:\nthose areas that are inundated or saturated by surface or ground water at a frequency\nand duration sufficient to support, and that under normal circumstances do support, a\nprevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands\ngenerally include swamps, marshes, bogs, and similar areas.\n\n33 C.F.R. \xc2\xa7 328.3 (b) (Corps\xe2\x80\x99 regulations); 40 C.F.R. \xc2\xa7 230.3(t) (EPA\xe2\x80\x99s regulations).\nWhile that definition is the primary definition of wetlands for purposes of the Clean Water\nAct, there are a few other definitions used by other agencies that have some responsibility\nover wetlands under the Clean Water Act. As noted in Chapter 2, the Fish and Wildlife\nService has some responsibilities regarding wetlands under the Clean Water Act and\nseveral other federal statutes. In administering a National Wetlands Inventory, the Fish and\nWildlife Service uses a definition of \xe2\x80\x9cwetlands\xe2\x80\x9d that is similar, but not identical, to the\ndefinition adopted by EPA and the Corps. Specifically, the Service defines wetlands as\n\xe2\x80\x9clands transitional between terrestrial and aquatic systems where the water table is usually\nat or near the surface or the land is covered by shallow water. For purposes of this\nclassification, wetlands must have one or more of the following three attributes: (1) at least\nperiodically, the land supports predominantly hydrophytes, (2) the substrate is\npredominantly undrained hydric soil, and (3) the substrate is nonsoil and is saturated with\nwater or covered by shallow water at some time during the growing season of each year.\xe2\x80\x9d\nL. Cowardin, et al., U.S. Department of the Interior, Fish and Wildlife Service, Classification\nof Wetlands and Deep-Water Habitats of the United States (1979). In addition, the Natural\nResources Conservation Service regulates wetlands under the Food Security Act, which\nhas a similar, though not identical, statutory definition for wetlands, see 16 U.S.C.\n\xc2\xa7 3801(27), but that agency also has some regulatory responsibilities over wetlands on\nagricultural lands under the Clean Water Act, as discussed below.\nChapter 1 of this book described the scientific bases for determining whether a particular\ngeographic area constitutes a wetland (i.e. the presence of specific types of soils,\nvegetation and hydrology) and outlined the delineation process that is used to identify the\n75\n\n\x0cboundaries of wetlands. Not surprisingly, the federal regulatory definitions focus on the\nthree characteristics of wetlands that are central to delineation - vegetation, soils, and\nhydrology. Because the regulatory definition of wetlands adopted by EPA and the Corps\nmay seem a little difficult to apply to a specific piece of property without further clarification,\nthe federal agencies with jurisdiction over wetlands have provided guidance over the years\nto help staff and the regulated community determine the scope of the definition.\nDelineation manuals: In 1987, the Corps adopted a Wetlands Delineation Manual that\noutlined tests and procedures that agency staff could use to determine whether a particular\ngeographic area had the vegetation, soils and hydrology necessary to be classified as a\nwetland. The manual was a guidance document, rather than a rule, so it was not adopted\npursuant to notice and comment rulemaking. In 1988, EPA adopted a different manual, also\nas a guidance document, which used different tests and procedures to delineate wetlands.\nW.S. Sipple, U.S. Environmental Protection Agency, Wetland Identification and Delineation\nManual (1988). The EPA manual included a test that relied heavily on an analysis of\nvegetation for sites of 15 acres or less. Ralph W. Tiner, WETLAND INDICATORS: A\nGUIDE TO WETLAND IDENTIFICATION, DELINEATION, CLASSIFICATION, AND\nMAPPING 208-209 (CRC Press 1999). Adding to the confusion, at the time, the Fish and\nWildlife Service had its own procedures for identifying wetlands, based on the Cowardin\ndefinition outlined above, as did the Soil Conservation Service, which regulated wetlands\nunder the Food Security Act. See Soil Conservation Service, U.S. Department of\nAgriculture, National Food Security Act Manual (1985). (Note: The Soil Conservation\nService became the Natural Resources Conservation Service in a 1994 USDA\nreorganization.)\nIn order to eliminate the confusion caused by the sometimes conflicting guidance\ndocuments, in 1989, EPA, the Corps, the Fish and Wildlife Service and the Soil\nConservation Service developed a uniform manual for delineating wetlands, see Fish and\nWildlife Service, Environmental Protection Agency, Department of the Army, Soil\nConservation Service, Federal Manual for Identifying and Delineating Jurisdictional\nWetlands (1989). Like the predecessor documents, the interagency manual was a\nguidance document, rather than a rule, and was adopted outside of the notice and\ncomment rulemaking process. Shortly after its adoption, the interagency manual was\ncriticized by landowners and organizations who claimed that the manual would expand\njurisdiction to cover a much broader universe of areas as wetlands. See National Research\nCouncil, Wetlands: Characteristics and Boundaries 2 (The National Academies Press,\n1995).\nBecause the manual was adopted informally, landowners challenged the use of the manual\non the grounds that it was a legislative rule that was adopted in violation of the APA\xe2\x80\x99s\nnotice-and-comment rulemaking procedures and was, therefore, invalid. The United States\nCourt of Appeals for the Fourth Circuit addressed that issue in the following case:\n\n76\n\n\x0cPhoto 21 By Ardfern (Own work)\nhttp://commons.wikimedia.org/wiki/File%3ABallynoe_(24)%2C_September_2009.JPG [CC-BY-SA-3.0 or\nGFDL]\n\nHobbs v. United States\n947 F.2d 941 (4th Cir. 1991)\ncert. denied 504 U.S. 940 (1992)\n\nResources for the Case\nGoogle Map of all the cases in the book\nUnedited opinion (From Justia)\n\nPER CURIAM:\nThese appeals arise from a civil enforcement action brought by the Environmental\nProtection Agency for alleged violations of the Clean Water Act ("CWA"), * * * by Phillip and\nDorothy Hobbs as well as the couple\'s son and daughter-in-law, Paul and Donna Hobbs.\nThe violations stem from the clearing, draining, and constructing of roads on approximately\n50 acres of alleged wetlands to create hay fields. All of the Hobbses were subjected to\npenalties for violations of the CWA by the district court. The Hobbses appeal the district\ncourt\'s decision on various grounds. Finding none of their arguments persuasive, we affirm\nthe district court\'s decision.\nI.\nA.\nA brief review of the statute is necessary for an understanding of the law of this case. The\nClean Water Act is a comprehensive statute designed to "restore and maintain the\nchemical, physical, and biological integrity of the Nation\'s waters." CWA \xc2\xa7 101(a)(2) * * *\n77\n\n\x0cIn accordance with this mandate, the Act bars the discharge of pollutants into waters of the\nUnited States except in compliance with a permit issued under the Act. CWA \xc2\xa7 301(a) * * *\nThe term pollutant includes dredged and fill material consisting of soil, rock, and sand.\nCWA \xc2\xa7 404 * * * The Hobbses do not contest that their discharge material fits within the\ndefinition of a pollutant.\nThe term "waters of the United States" is not explicitly defined under the statute. The Act\ndoes define "navigable waters," however, as waters of the United States. 33 U.S.C. \xc2\xa7\n1362(7). * * *\n"Waters of the United States" is also defined as waters adjacent to other waters of the\nnation. 40 C.F.R. \xc2\xa7 230.3(s); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121\n(1985). EPA defines "adjacent" as bordering, contiguous, or neighboring. 40 C.F.R.\n\xc2\xa7 230.3(a). Moreover, wetlands separated from other waters of the United States by "manmade dikes or barriers, natural river berms, beach dunes and the like are \'adjacent\nwetlands\'" according to the EPA. 40 C.F.R. \xc2\xa7 230.3(b). Finally, both the EPA and the Army\nCorps of Engineers ("Corps") define wetlands as:\nthose areas that are inundated or saturated by surface or groundwater at a\nfrequency and duration sufficient to support, and that under normal circumstances\ndo support, a prevalence of vegetation typically adapted for life in saturated soil\nconditions. Wetlands generally include swamps, marshes, bogs, and similar areas.\n40 C.F.R. \xc2\xa7 230(t); 33 C.F.R. \xc2\xa7 328(b).\nThe EPA is authorized under the Act to issue a Finding of Violation and a Compliance\nOrder for any violation of CWA \xc2\xa7 301(a). 33 U.S.C. \xc2\xa7 1319(a). Moreover, EPA may\ncommence a civil action for appropriate relief for a violation of CWA \xc2\xa7 301(a).\nFor the instant case, there are two relevant manuals for wetlands determinations, one\nproduced by the EPA and the other by the Corps. Both manuals are used to aid in the\ndetermination of what constitutes wetlands. Each manual relies on three parameters to\nmake a determination: hydrology, vegetation, and soils. The Corps of Engineers\nDelineation Manual was adopted in 1987. The EPA manual was adopted April 1988. There\nis also an interagency manual, adopted by the EPA and the Corps, which was adopted\nJanuary 10, 1989. The joint manual, like the EPA manual, uses the three parameter test in\na manner that expands the definition of wetlands. The jury was allowed to consider the\nmultiparameter standard in each of the manuals.\n\n78\n\n\x0cII\nPhillip and Dorothy Hobbs own about 169 acres in Ware Neck, Gloucester County, Virginia.\nThe Hobbses\' son and daughter-in-law, Paul and Donna, also own 37 acres in the county.\nThe combined property contains approximately 206 acres ("Hobbses\' property"). The jury\nfound this parcel to be wetlands adjacent to the Ware River.\nThe Hobbses cleared, drained, and constructed roads on approximately 50 acres of\nwetlands to create hay fields. In the process, the elder Hobbs discharged, dredged, or filled\nmaterial onto their wetlands in 1980, 1984, and 1985. The younger Hobbs did the same in\n1986, 1987, and 1988. The Hobbses, however, did not apply for a \xc2\xa7 404 permit from the\nCorps, as required by the CWA.\nThe Hobbses contend that they did not apply for a permit because they were under the\nimpression that they were not required to do so. On September 29, 1988 an official of the\nU.S. Fish and Wildlife Service ("FWS") went to the Hobbses property and told Paul Hobbs\nthey might be doing work on nontidal wetlands. The FWS official arranged a site visit by a\nCorps official. The Hobbses contend they overheard the two men talking and expressing\ndoubt about whether the land was in fact wetlands. When Paul Hobbs asked about the\nproperty, the Corps official stated that "it was a grey area of enforcement for the Corps of\nEngineers ... and he didn\'t see where the [Hobbses] had ... done anything wrong."\nMoreover, the Corps employee told the Hobbses that he would get back to them about\nwhether their land was wetlands; but he never told them whether the property was wetlands\nnor did the official tell them about a permit.\nEPA issued the Hobbses a Findings of Violation and Compliance Order, or Administrative\nOrder, on March 23, 1989. EPA subsequently amended the order on April 25, 1989.\nIII\nOn April 25, 1989, the Hobbses filed a complaint challenging the EPA\'s Findings of\nViolation and Compliance Order issued against them under \xc2\xa7 404. On May 4, 1989, the\ndistrict court issued a preliminary injunction allowing the Hobbses to continue to farm that\nportion of the land previously converted to hayfields. * * *\n[At the trial level, EPA then filed a counterclaim against the Hobbses for illegally filling the\nwetlands and the court dismissed the Hobbses complaint against EPA. On EPA\xe2\x80\x99s\ncounterclaim, a jury found that the Hobbses discharged pollutants onto wetlands on their\nland in violation of the Clean Water Act. The court allowed the defendants to continue to\ngrow hay on the parcels that they had previously converted to hay fields, but ordered them\nto pay $300 in civil penalties and required them to take various actions to restore and/or\npreserve the other wetlands on their property. The defendants appealed the court\xe2\x80\x99s\ndecision on several grounds, including an argument that the delineation manual(s) used by\n79\n\n\x0cthe government were substantive rules that were invalid because they were not adopted in\naccordance with the APA.]\nIV\nA\n***\nThe second issue is whether the EPA\'s wetlands delineation manuals are interpretive\nguidance documents or substantive rules with binding legal effect in the determination of\nwhat constitutes wetlands under 40 C.F.R. \xc2\xa7 230(t) and 33 C.F.R. \xc2\xa7 328.3(b). Closely\nrelated to this matter is the question of whether the EPA Manual constitutes substantive\nrules subject to the Administrative Procedure Act ("APA") notice and comment\nrequirements, 5 U.S.C. \xc2\xa7 553.\nThe Hobbses contend that the EPA manual represents substantive rules subject to the\npublic notice and comment requirements under the APA. Their argument in effect is the\nmanual does not merely clarify and explain the process of wetlands determination, but\nrather expands federal jurisdiction.\nWhether the manual is subject to APA depends on whether it constitutes interpretive rules\nor substantive rules. The former rules " \'are those which merely clarify or explain existing\nlaw or regulations,\' and \'do not have the full force and effect of a substantive rule but [are]\nin the form of an explanation of particular terms.\' " American Hospital Ass\'n v. Bowen, 834\nF.2d 1037, 1045 (D.C. Cir.1987) (citations omitted). In Jerri\'s Ceramic Arts v. Consumer\nProducts Safety Comm\'n, 874 F.2d 205 (4th Cir.1989), we noted the distinction between\nthe two rules:\nAn interpretive rule simply state[s] what the administrative agency thinks the statute\nmeans, and only "remind[s]" affected parties of existing duties ... [while] a\nsubstantive or legislative rule has the force of law, and creates new law or imposes\nnew rights or duties.\nId., 207. Moreover, this court held that in determining whether a rule was interpretive or\nsubstantive courts must consider the agency\'s intent. Id., at 208.\nThe intent behind the manuals and absence of the force of law make it clear that they are\ninterpretive rules. The EPA manual states in its preface that it was "developed to address\nthe need for operational and jurisdictional guidance." Moreover, the manual states that the\nmethods offered for wetlands determinations "are the recommended approaches."\nWhile the EPA manual does not possess the force of law, the EPA manual does represent\n80\n\n\x0ca significant change in the definition and an expansion of jurisdiction. The change in\ndefinition, however, is premised upon the making of certain scientific assumptions\nregarding the presence of the three parameters for a wetlands determination. The Hobbses\npoint to nothing in the record to suggest any explicitly political motivation or policy\nconsideration behind the change in the parameter test. Without a showing of intent or legal\nforce, the manuals are no more than interpretive rules.\nQuestions and Comments\n1.\n\nWhat procedures does the APA require agencies to follow when adopting\ninterpretative rules? How do those procedures differ from the procedures required\nfor substantive (legislative) rules?\n\n2.\n\nAre interpretative rules entitled to Chevron deference? Do they carry the force of\nlaw? Why might the agencies have preferred to adopt the delineation manuals as\ninterpretative rules, as opposed to substantive (legislative) rules?\n\n3.\n\nIs an agency\xe2\x80\x99s characterization of a rule as \xe2\x80\x9cinterpretative\xe2\x80\x9d or \xe2\x80\x9csubstantive\xe2\x80\x9d outcome\ndeterminative? How does this court determine what type of \xe2\x80\x9crule\xe2\x80\x9d EPA has adopted?\n\n4.\n\nRemember that several federal agencies have jurisdiction over various aspects of\nwetlands regulation under the Clean Water Act and other statutes. Note that the\nviolation in this case was first identified by a representative of the Fish and Wildlife\nService, who arranged a visit by a representative of the Corps of Engineers, but that\nthe enforcement action in the case was brought by EPA. Note, too, that the\nrepresentatives of the various agencies appeared to view the severity of the\nviolation differently. One of the defendants in the case argued that the government\nshould be estopped from prosecuting him because he constructed the drainage\nditches on the property under the supervision of and according to the design\nspecifications of two Soil Conservation Service employees. The court addressed\nthat argument in a separate portion of the opinion. How do you think the court\nshould have ruled? See Office of Personnel Management v. Richmond, 496 U.S.\n414 (1990).\n\n5.\n\nAs Chapter 10 will explore more fully, the government does not need to prove that a\ndefendant acted intentionally, or with any mental state, to prevail in a civil\nenforcement action under the Clean Water Act. Nevertheless, the government, and\ncourts, are likely to consider the defendant\xe2\x80\x99s mental state when determining the\nseverity of the penalties for violating the Act. Does it appear that the trial court\nconsidered the Hobbses mental state in determining the penalty for the defendant\xe2\x80\x99s\nconduct?\n\n81\n\n\x0cMore Manuals: In 1991, the Corps and EPA developed updates to the 1989 manual and\nbegan a rulemaking process to adopt a new manual. See 56 Fed. Reg. 40,446 (Aug. 14,\n1991). The 1991 proposal generated controversy when critics argued that it was grounded\nmore in politics than science and would significantly narrow jurisdiction over wetlands.\nEnvironmental groups claimed that 30-80% of the areas regulated as wetlands under the\n1989 manual would be excluded from regulation under the proposed 1991 manual. See\nHeimlich, R.E., K.D. Wiebe, R. Claassen, D. Gadsby and R.M. House, Economic Research\nService, U.S. Department of Agriculture, Wetlands and Agriculture: Private Interests and\nPublic Benefits, Agricultural Economic Report No. 765 (1998). The agencies ultimately\nabandoned the proposed rulemaking.\nIn response to criticism of the 1989 manual and concerns about the process that the\nagencies were using to develop the delineation manuals, in 1992, Congress included a\nrider in appropriations legislation for the Corps that prohibited the Corps from utilizing the\n1989 interagency manual or any other manual adopted after the 1989 manual unless the\nmanual was adopted pursuant to notice-and-comment rulemaking procedures. See Energy\nand Water Development Appropriations Act of 1993, Pub. L. No. 102-377, 106 Stat, 1315\n(1992). In light of the legislation, the Corps returned to using its 1987 delineation manual to\ndelineate wetlands under the Clean Water Act. Although the legislation did not apply to\nEPA, EPA also decided to use the Corps\xe2\x80\x99 1987 manual to delineate wetlands under the\nClean Water Act at that time. The Natural Resources Conservation Service, however,\nreturned to its own National Food Security Act Manual.\nIn 1995, the National Academy of Sciences released a report on characterizing wetlands,\nsee National Research Council, Wetlands: Characteristics and Boundaries (The National\nAcademies Press, 1995) (\xe2\x80\x9cNAS Study\xe2\x80\x9d), that was prepared in response to a federal law that\nrequired the Academy to prepare such a study to assist in the development of a new\nfederal wetlands delineation manual. See Departments of Veterans Affairs and Housing\nand Urban Development and Independent Agencies Appropriations Act of 1993, Pub. L.\nNo. 102-389, 106 Stat. 1571 (1992). The report included a series of recommendations\nimproving the 1987 Corps\xe2\x80\x99 manual, but also found that the approach that the agencies were\nusing under that manual was scientifically sound. See NAS Study, supra, at 12.\nAlthough the National Academy of Sciences study suggested that there was a need for a\n\xe2\x80\x9cmore efficient, more uniform, ... and more accurate\xe2\x80\x9d approach to delineating wetlands, id.,\nEPA and the Corps still use the Corps\xe2\x80\x99 1987 delineation manual to delineate wetlands\nunder the Clean Water Act. However, following up on recommendations in a 2002 Corps\nreport, see James S. Wakeley, Developing a Regionalized Version of the Corps of\nEngineers Wetlands Delineation Manual: Issues and Recommendations, ERDC/EL TR-0220 (Aug. 2002), the Corps adopted a series of 10 regional supplements to the delineation\nmanual, with procedures and tests tailored to the specific vegetation, soils and hydrology\nconditions of each region. See U.S. Army Corps of Engineers, Regional Supplements to\nthe Corps Delineation Manual, available at:\n82\n\n\x0chttp://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/reg_supp.a\nspx\nDivision of authority for determining jurisdiction: As will be described more fully in\nChapters 6 and 10, EPA plays an important role in the permitting process with the Corps\nand both agencies have enforcement authority under the Clean Water Act. In order to\nestablish efficient coordination between the agencies in making jurisdictional\ndeterminations under the Act, EPA and the Corps entered into a Memorandum of\nAgreement in 1989, see Memorandum of Agreement Between the Department of the Army\nand the Environmental Protection Agency Concerning the Determination of the Section 404\nPermit Program and the Application of the Exemptions Under Section 404(f) of the Clean\nWater Act (Jan. 19, 1989)(MOA), that gave the Corps the responsibility for performing \xe2\x80\x9cthe\nmajority of the geographic jurisdictional determinations\xe2\x80\x9d and provided that the Corps\xe2\x80\x99\ndeterminations would be binding on the Government. The MOA did, however, authorize\nEPA to make jurisdictional determinations in \xe2\x80\x9cspecial cases\xe2\x80\x9d and recognized that EPA\nwould be the lead agency in developing guidance on determining jurisdiction under the Act.\nId. Because the agencies entered into the agreement in 1989, the MOA provided that the\nagencies would make determinations using the 1989 interagency delineation manual. Id. In\n1993, the agencies amended the MOA to provide that determinations would be made using\nthe 1987 Corps delineation manual, but left the rest of the agreement intact. See 58 Fed.\nReg. 4995 (Jan. 19, 1993). While most jurisdictional determinations are covered by those\nMOAs, the Natural Resources Conservation Service takes the lead on delineating wetlands\nfor purposes of the Food Security Act and delineates them using its own manual. See\nEnvironmental Protection Agency, Department of Defense, Department of Agriculture,\nDepartment of Interior, Interagency Memorandum of Agreement Concerning Wetlands\nDeterminations for Purposes of Section 404 of the Clean Water Act and Subtitle B of the\nFood Security Act, (Jan. 6, 1994).\nWhile the government agencies are ultimately responsible for determining the geographic\nlimits of wetlands jurisdiction, landowners frequently retain consultants to delineate the\nwetland boundaries on their property in accordance with the 1987 Corps manual prior to\nseeking an official jurisdictional determination from the government. States and\nprofessional organizations, such as the Society of Wetlands Scientists, provide training and\ncertification for wetlands delineators, see Leah Stetson, Association of State Wetlands\nManagers, State Wetland Delineator Certification Programs, Wetland News (June-July\n2007), but there is not a national certification program. An official jurisdictional\ndetermination, though, can be made only by the government. While the Corps and EPA rely\non the same scientific tests to delineate wetlands nationwide, a 2004 General Accounting\nOffice Report determined that those criteria are interpreted and applied unevenly by the\nvarious Corps district offices. See General Accounting Office, Corps of Engineers Needs to\nEvaluate its District Office Practices in Determining Jurisdiction GAO\xe2\x80\x9304\xe2\x80\x93297 (Feb. 2004).\n\n83\n\n\x0cTypes of Jurisdictional Determinations: The Corps issues two types of jurisdictional\ndeterminations - \xe2\x80\x9cpreliminary jurisdictional determinations\xe2\x80\x9d and \xe2\x80\x9capproved jurisdictional\ndeterminations.\xe2\x80\x9d See U.S. Army Corps of Engineers, Jurisdictional Determinations,\nRegulatory Guidance Letter 08-02 (June 26, 2008) (hereinafter \xe2\x80\x9cRGL 08-02"). A\n\xe2\x80\x9cpreliminary jurisdictional determination\xe2\x80\x9d is non-binding, cannot be appealed, and can be\nused only to indicate that there may be wetlands or waters on a piece of property. See 33\nC.F.R. \xc2\xa7 331.2. It cannot be used to indicate that wetlands or waters are not present. See\nRGL 08-02, \xc2\xa7 8. Landowners might seek preliminary jurisdictional determinations to waive\nquestions regarding jurisdiction and move ahead expeditiously to obtain a development\npermit or the Corps might use a preliminary jurisdictional determination as the basis for a\ncompliance order when site access may be impractical or unauthorized or in other\ncircumstances when it is not possible to complete an approved jurisdictional determination\nin a timely manner. Id. \xc2\xa7 4.\nAn \xe2\x80\x9capproved jurisdictional determination\xe2\x80\x9d is an official determination that \xe2\x80\x9cwetlands,\xe2\x80\x9d\n\xe2\x80\x9cwaters of the United States,\xe2\x80\x9d or \xe2\x80\x9cnavigable waters\xe2\x80\x9d are present on the property or are not\npresent on the property. See 33 C.F.R. \xc2\xa7 331.2. The \xe2\x80\x9capproved jurisdictional determination\xe2\x80\x9d\nprecisely identifies the boundaries of those waters. Id. \xe2\x80\x9cApproved jurisdictional\ndeterminations\xe2\x80\x9d are valid for five years and can be challenged administratively. See RGL\n08-02 \xc2\xa72.\nWhile jurisdictional determinations can be challenged administratively, courts have\ngenerally held that they are not \xe2\x80\x9cfinal agency actions\xe2\x80\x9d and are not, therefore, subject to\njudicial review. See, e.g., Southern Pines Associates v. United States, 912 F.2d 713 (4th\nCir. 1990); Hoffman Group, Inc. V. EPA, 902 F.2d 567 (7th Cir. 1990). It is not yet clear,\nthough, whether the Supreme Court\xe2\x80\x99s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012),\nwill change that. Although the jurisdictional determinations have, historically, not been\nsubject to immediate judicial challenge, the determinations can be challenged when the\nCorps makes a final decision on a permit application that incorporates the determination, or\nwhen the government brings an enforcement action based on the determination. See\nChapter 10.\nResources\n\xef\x82\xb7\nA Corps\xe2\x80\x99 \xe2\x80\x9capproved jurisdictional determination\xe2\x80\x9d that wetlands\nexist on a site in Sacramento, California.\n\xef\x82\xb7\nAccess the Corps JDs online for the Baltimore District or San\nFrancisco District.\n\xef\x82\xb7\nAccess the Unified Corps Database of JDs for all Districts\n\xef\x82\xb7\nEPA/Corps Memo re: Strengthening Transparency and\nCoordination in Jurisdictional determinations (Nov. 16, 2015)\n84\n\n\x0cResearch Problem\nMany of the Corps Districts post approved jurisdictional determinations on their websites, as\nnoted above. Browse one of the Corps District\xe2\x80\x99s websites to find an approved jurisdictional\ndetermination where the Corps has determined that there are wetlands on the property that are\nwaters of the United States, but where the wetlands are not adjacent to traditional navigable\nwaters (TNWs). For that jurisdictional determination, please identify (1) the District; (2) the file\nnumber; and (3) the acreage of wetlands that qualify as waters of the United States. In addition,\nbriefly summarize the connection between the wetlands and traditional navigable waters and the\nfactors that demonstrate that the wetlands have a significant nexus to traditional navigable\nwaters.\n\nHypothetical\nClarissa Darrow is an attorney with the EPA in the Atlanta Regional Office and has been\ncontacted by an EPA investigator in the Water Branch of the Office regarding the illegal\ndischarge of fill material into wetlands near Naples, Florida by the Valencia Citrus Company.\nElvin Kagan, the corporate counsel for the Valencia Citrus Company, informed Darrow that\nbefore expanding their orchards last year, Valencia contracted with Carl Kramer as a consultant\nto delineate their property and determine whether there were any wetlands on the property that\nValencia planned to develop. Kagan insisted that Valencia did not add any fill material to\nwetlands on the property until Kramer informed them that the wetlands were not \xe2\x80\x9cwaters of the\nUnited States.\xe2\x80\x9d If EPA has not yet instituted any enforcement proceedings against Valencia, and\nif Kramer is not independently represented by an attorney, may Darrow contact Kramer and\nquestion him without seeking approval from Kagan, as long as Kramer consents to the meeting?\nCould Darrow contact Kramer and question him if he were an employee of the Valencia Fruit\nCompany? See American Bar Association, Model Rule of Professional Conduct 4.2 and 4.3 (and\nassociated comments).\n\nSection Quiz\nNow that you\xe2\x80\x99ve finished the material covering Section I of Chapter 4, why not try a CALI\nlesson on the material at http://cca.li/PT. It should only take about 15 minutes or less.\n\n85\n\n\x0cII.\n\nWaters of the United States\n\nA.\n\nThe Corps\xe2\x80\x99 Initial Interpretation\n\nThe scope of waters, including wetlands, that have been subject to jurisdiction under the\nClean Water Act has ebbed and flowed over the years. The statute does not explicitly\nindicate that it covers wetlands. As noted above, the statute regulates various activities in\n\xe2\x80\x9cnavigable waters,\xe2\x80\x9d which Congress defined as \xe2\x80\x9cwaters of the United States, including the\nterritorial seas.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(7). When the Corps first adopted rules to define the term\n\xe2\x80\x9cnavigable waters,\xe2\x80\x9d it used the definition that it had been using under the Rivers and\nHarbors Act. See 37 Fed. Reg. 18289 (Sep. 9, 1972).\n1974 Corps definition of \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nThe term "navigable waters of the United States" and "navigable waters,"\nas used herein mean those waters of the United States which are subject to\nthe ebb and flow of the tide, and/or are presently, or have been in the past,\nor may be In the future susceptible for use for purposes of interstate or\nforeign commerce. 33 C.F.R. 209.210(d)(1), 39 Fed. Reg. 12115 (April 3,\n1974).\nUnder that definition, \xe2\x80\x9cnavigable\xe2\x80\x9d really meant \xe2\x80\x9cnavigable.\xe2\x80\x9d In order to be a navigable water,\nthe water had to be:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\ncurrently navigable;\nhistorically navigable; or\npotentially navigable\n\nThe Corps\xe2\x80\x99 \xe2\x80\x9cnavigable waters\xe2\x80\x9d definition was derived, historically, from a test established by\nthe Supreme Court over one hundred years earlier in The Daniel Ball, 77 U.S. 557 (1870).\nIn that case, the Court rejected the British common law approach that defined navigability\nbased on the ebb and flow of the tide, and adopted a definition that focused on whether the\nwaters \xe2\x80\x9care used, or are susceptible of being used, in their ordinary condition, as highways\nfor commerce, over which trade and travel are or may be conducted in the customary\nmodes of trade and travel on water.\xe2\x80\x9d 77 U.S. 563. The tie to commerce was significant, so\nthe mere fact that one could float a canoe on the water was not dispositive if the water\ncould not at least potentially be used as a highway of commerce for trade or travel. (For a\nprimer on \xe2\x80\x9cnavigability\xe2\x80\x9d prepared by American Whitewater, click here.)\n\n86\n\n\x0cPhoto 22 USFWS Photo by John and Karen Hollingsworth\nhttp://commons.wikimedia.org/wiki/File:Canoes_on_water_in_swamp_area.jpg\n\nEnvironmental groups, including the Natural Resources Defense Council, felt that the\nCorps\xe2\x80\x99 regulatory interpretation of \xe2\x80\x9cnavigable waters\xe2\x80\x9d was too narrow and that Congress\nintended to regulate a broader range of waters under the Clean Water Act than were\nregulated under the Rivers and Harbors Act. Accordingly, NRDC sued the Corps, and the\nFederal District Court for the District of Columbia issued the following decision.\nNatural Resources Defense Council, Inc. v. Callaway\n392 F. Supp. 685 (D.D.C. 1975)\nAUBREY E. ROBINSON, Jr., District Judge.\n* * * [The Plaintiffs\xe2\x80\x99] Motion for Partial Summary Judgment on Count I of the Complaint is\ngranted; and it is DECLARED that: * * *\nCongress by defining the term \' navigable waters\' in Section 502(7) of the [Clean Water Act]\nto mean \'the waters of the United States, including the territorial seas,\' asserted federal\njurisdiction over the nation\'s waters to the maximum extent permissible under the\nCommerce Clause of the Constitution. Accordingly, as used in the [Clean] Water Act, the\nterm is not limited to the traditional tests of navigability. * * *\n\n87\n\n\x0cDefendants Howard H. Callaway, Secretary of the Army, and Lt. Gen. William C. Gribble,\nChief, Army Corps of Engineers, are without authority to amend or change the statutory\ndefinition of navigable waters and they are hereby declared to have acted unlawfully and in\nderogation of their responsibilities under Section 404 of the [Clean] Water Act by the\nadoption of the definition of navigability described at 33 C.F.R. \xc2\xa7 209.210(d)(1), 39 Federal\nRegister 12119 (April 3, 1974) and 33 C.F.R. 209.260; and it is ordered that Defendants\nCallaway and Gribble:\n1. Revoke and rescind so much of 39 Federal Register 12115, et seq. (April 3, 1974) as\nlimits the permit jurisdiction of the Corps of Engineers by definition or otherwise to other\nthan \'the waters of the United States.\'\n2. Publish within fifteen (15) days of the date of this Order proposed regulations clearly\nrecognizing the full regulatory mandate of the [Clean] Water Act.\n3. Publish within thirty (30) days of the date of this Order final regulations clearly\nrecognizing the full regulatory mandate of the [Clean] Water Act * * * .\nQuestions and Comments\n1.\n\nSubsequent decisions examining the regulatory definition of \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d frequently invoke the Chevron analysis, which accords agency rulemaking a\ndegree of deference. Why did the Court not use that analysis in this case, and would\nthe case have come out differently if the Court had used the Chevron analysis?\n\n2.\n\nWould the deadlines that the court gave the agency to adopt proposed and final\nrules to define \xe2\x80\x9cnavigable waters\xe2\x80\x9d be realistic today?\n\n3.\n\nIf the Court upheld the Corps\xe2\x80\x99 regulatory definition of \xe2\x80\x9cnavigable waters,\xe2\x80\x9d would\nmany wetlands be regulated under the Clean Water Act?\n\n4.\n\nHow broad was the Corps\xe2\x80\x99 jurisdiction over \xe2\x80\x9cwaters\xe2\x80\x9d after this decision? What limits\ndid the Court impose on the Corps\xe2\x80\x99 authority to regulate waters? Would \xe2\x80\x9cnavigable\nwaters\xe2\x80\x9d need to be \xe2\x80\x9cnavigable\xe2\x80\x9d?\n\nB.\n\nExpanded Jurisdiction, Adjacent Wetlands and Riverside-Bayview Homes\n\nIn response to the court\xe2\x80\x99s decision in N.R.D.C. v. Callaway, the Corps amended its\nregulations to significantly broaden the definition of \xe2\x80\x9cnavigable waters\xe2\x80\x9d under the Clean\nWater Act to advance the water quality protection purposes of the statute, as opposed to\nthe navigability goals of the Rivers and Harbors Act. In 1975, the agency issued interim\nfinal regulations that included not only the traditional \xe2\x80\x9cnavigable waters\xe2\x80\x9d that were regulated\n88\n\n\x0cunder the Rivers and Harbors Act, but also tributaries of those waters and \xe2\x80\x9ccoastal\nwetlands\xe2\x80\x9d or \xe2\x80\x9cfreshwater wetlands\xe2\x80\x9d that were contiguous to, or adjacent to, traditional\nnavigable waters. See 40 Fed. Reg. 31320 (July 25, 1975). The 1975 regulations marked\nthe first time that the Corps defined \xe2\x80\x9cnavigable waters\xe2\x80\x9d under the Clean Water Act to\ninclude wetlands. The new regulations also asserted jurisdiction over intrastate lakes, rivers\nand streams (even if not traditionally navigable) if they were utilized in various ways for\ninterstate commerce. Thus, while the regulations broadened the categories of waters within\nthe Corps\xe2\x80\x99 jurisdiction, the agency limited its jurisdiction to waters with ties to interstate\ncommerce.\nIn 1982, the Corps refined its regulations but did not significantly expand jurisdiction.\nBecause the Clean Water Act defines \xe2\x80\x9cnavigable waters\xe2\x80\x9d as \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d\nthe Corps adopted a regulatory definition of \xe2\x80\x9cwaters of the United States\xe2\x80\x9d that included the\nfollowing waters:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nthe traditional navigable waters regulated under the 1974 regulations (33 C.F.R.\n\xc2\xa7 323.2(a)(1));\ninterstate waters and interstate wetlands (33 C.F.R. \xc2\xa7 323.2(a)(2));\nintrastate waters the use, degradation or destruction of which could affect interstate\nor foreign commerce (33 C.F.R. \xc2\xa7 323.2(a)(3));\nimpoundments of water otherwise defined as waters of the United States under the\ndefinition (33 C.F.R. \xc2\xa7 323.2(a)(4));\ntributaries of waters identified in paragraphs (a)(1) - (4) (33 C.F.R. \xc2\xa7 323.2(a)(5));\nthe territorial sea (33 C.F.R. \xc2\xa7 323.2(a)(6)); and\nwetlands adjacent to waters (other than waters that are themselves wetlands)\nidentified in paragraphs (a)(1)-(6) (33 C.F.R. \xc2\xa7 323.2(a)(7))\n\nSee 33 C.F.R. \xc2\xa7 323 (1982).\nThose rules were challenged in the following case, which made it to the U.S. Supreme\nCourt in 1985.\n\nUnited States v. Riverside Bayview\nHomes\n474 U.S. 121 (1985)\nJUSTICE WHITE delivered the opinion of the\nCourt.\n\nResources for the Case\nOral Argument Audio (from the Oyez\nProject)\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the\ncoursebook\n\nThis case presents the question whether the Clean Water Act (CWA), 33 U.S.C. \xc2\xa7 1251 et\nseq., together with certain regulations promulgated under its authority by the Army Corps of\n89\n\n\x0cEngineers, authorizes the Corps to require landowners to obtain permits from the Corps\nbefore discharging fill material into wetlands adjacent to navigable bodies of water and their\ntributaries.\n\nI\nThe relevant provisions of the Clean Water Act originated in the Federal Water Pollution\nControl Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged\nsince that time. Under \xc2\xa7\xc2\xa7 301 and 502 of the Act, 33 U.S.C. \xc2\xa7\xc2\xa7 1311 and 1362, any\ndischarge of dredged or fill materials into "navigable waters" -- defined as the "waters of the\nUnited States" -- is forbidden unless authorized by a permit issued by the Corps of\nEngineers pursuant to \xc2\xa7 404, 33 U.S.C. \xc2\xa7 1344. * * * After initially construing the Act to\ncover only waters navigable in fact, in 1975 the Corps issued interim final regulations\nredefining "the waters of the United States" to include not only actually navigable waters but\nalso tributaries of such waters, interstate waters and their tributaries, and nonnavigable\nintrastate waters whose use or misuse could affect interstate commerce. 40 Fed.Reg.\n31320 (1975). More importantly for present purposes, the Corps construed the Act to cover\nall "freshwater wetlands" that were adjacent to other covered waters. A "freshwater\nwetland" was defined as an area that is "periodically inundated" and is "normally\ncharacterized by the prevalence of vegetation that requires saturated soil conditions for\ngrowth and reproduction." 33 C.F.R. \xc2\xa7 209.120(d)(2)(h) (1976). In 1977, the Corps refined\nits definition of wetlands by eliminating the reference to periodic inundation and making\nother minor changes. The 1977 definition reads as follows:\n"The term \'wetlands\' means those areas that are inundated or saturated by surface\nor ground water at a frequency and duration sufficient to support, and that under\nnormal circumstances do support, a prevalence of vegetation typically adapted for\nlife in saturated soil conditions. Wetlands generally include swamps, marshes, bogs\nand similar areas."\n33 C.F.R. \xc2\xa7 323.2(c) (1978).\nIn 1982, the 1977 regulations were replaced by substantively identical regulations that\nremain in force today. See 33 C.F.R. \xc2\xa7 323.2 (1985).2 Respondent Riverside Bayview\nHomes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the\nshores of Lake St. Clair in Macomb County, Michigan. In 1976, respondent began to place\nfill materials on its property as part of its preparations for construction of a housing\ndevelopment. The Corps of Engineers, believing that the property was an "adjacent\nwetland" under the 1975 regulation defining "waters of the United States," filed suit in the\nUnited States District Court for the Eastern District of Michigan, seeking to enjoin\n2\n\nThe regulations also cover certain wetlands not necessarily adjacent to other waters.\nSee 33 C.F.R. \xc2\xa7\xc2\xa7 323.2(a)(2) and (3) (1985). These provisions are not now before us.\n90\n\n\x0crespondent from filling the property without the permission of the Corps.\nThe District Court held that the portion of respondent\'s property lying below 575.5 feet\nabove sea level was a covered wetland, and enjoined respondent from filling it without a\npermit. * * * Respondent appealed, and the Court of Appeals remanded for consideration of\nthe effect of the intervening 1977 amendments to the regulation. * * * On remand, the\nDistrict Court again held the property to be a wetland subject to the Corps\' permit authority.\n***\nRespondent again appealed, and the Sixth Circuit reversed. * * * The court construed the\nCorps\' regulation to exclude from the category of adjacent wetlands -- and hence from that\nof "waters of the United States" -- wetlands that were not subject to flooding by adjacent\nnavigable waters at a frequency sufficient to support the growth of aquatic vegetation. The\ncourt adopted this construction of the regulation because, in its view, a broader definition of\nwetlands might result in the taking of private property without just compensation. The court\nalso expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the\nfilling of "navigable waters," intended to allow regulation of wetlands that were not the result\nof flooding by navigable waters. * * * Under the court\'s reading of the regulation,\nrespondent\'s property was not within the Corps\' jurisdiction, because its semiaquatic\ncharacteristics were not the result of frequent flooding by the nearby navigable waters.\nRespondent was therefore free to fill the property without obtaining a permit.\nWe granted certiorari to consider the proper interpretation of the Corps\' regulation defining\n"waters of the United States" and the scope of the Corps\' jurisdiction under the Clean\nWater Act, both of which were called into question by the Sixth Circuit\'s ruling.\n* * * We now reverse.\n\nII\nThe question whether the Corps of Engineers may demand that respondent obtain a permit\nbefore placing fill material on its property is primarily one of regulatory and statutory\ninterpretation: we must determine whether respondent\'s property is an "adjacent wetland"\nwithin the meaning of the applicable regulation, and, if so, whether the Corps\' jurisdiction\nover "navigable waters" gives it statutory authority to regulate discharges of fill material into\nsuch a wetland. In this connection, we first consider the Court of Appeals\' position that the\nCorps\' regulatory authority under the statute and its implementing regulations must be\nnarrowly construed to avoid a taking without just compensation in violation of the Fifth\nAmendment.\n[The Court then held that neither the imposition of a permit requirement by the Clean Water\nAct nor the denial of a permit would necessarily constitute a taking. Accordingly, the Court\nheld that it was not necessary to interpret the statute narrowly to avoid takings concerns.]\n\n91\n\n\x0c***\n\nIII\nPurged of its spurious constitutional overtones, the question whether the regulation at issue\nrequires respondent to obtain a permit before filling its property is an easy one. The\nregulation extends the Corps\' authority under \xc2\xa7 404 to all wetlands adjacent to navigable or\ninterstate waters and their tributaries. Wetlands, in turn, are defined as lands that are\n"inundated or saturated by surface or ground water at a frequency and duration sufficient to\nsupport, and that under normal circumstances do support, a prevalence of vegetation\ntypically adapted for life in saturated soil conditions." 33 C.F.R. \xc2\xa7 323.2(c) (195) (emphasis\nadded). The plain language of the regulation refutes the Court of Appeals\' conclusion that\ninundation or "frequent flooding" by the adjacent body of water is a sine qua non of a\nwetland under the regulation. Indeed, the regulation could hardly state more clearly that\nsaturation by either surface or ground water is sufficient to bring an area within the category\nof wetlands, provided that the saturation is sufficient to, and does, support wetland\nvegetation. The history of the regulation underscores the absence of any requirement of\ninundation. The interim final regulation that the current regulation replaced explicitly\nincluded a requirement of "periodi[c] inundation." 33 C.F.R. \xc2\xa7 209.120(d)(2)(h) (1976). In\ndeleting the reference to "periodic inundation" from the regulation as finally promulgated,\nthe Corps explained that it was repudiating the interpretation of that language "as requiring\ninundation over a record period of years." 42 Fed. Reg. 37128 (1977). In fashioning its own\nrequirement of "frequent flooding" the Court of Appeals improperly reintroduced into the\nregulation precisely what the Corps had excised. * * * Without the nonexistent requirement\nof frequent flooding, the regulatory definition of adjacent wetlands covers the property here.\nThe District Court found that respondent\'s property was "characterized by the presence of\nvegetation that requires saturated soil conditions for growth and reproduction," * * * and that\nthe source of the saturated soil conditions on the property was groundwater. There is no\nplausible suggestion that these findings are clearly erroneous, and they plainly bring the\nproperty within the category of wetlands as defined by the current regulatio In addition, the\ncourt found that the wetland located on respondent\'s property was adjacent to a body of\nnavigable water, since the area characterized by saturated soil conditions and wetland\nvegetation extended beyond the boundary of respondent\'s property to Black Creek, a\nnavigable waterway. Again, the court\'s finding is not clearly erroneous. Together, these\nfindings establish that respondent\'s property is a wetland adjacent to a navigable waterway.\nHence, it is part of the "waters of the United States" as defined by 33 C.F.R. \xc2\xa7 323.2\n(1985), and if the regulation itself is valid as a construction of the term "waters of the United\nStates" as used in the Clean Water Act, a question which we now address, the property\nfalls within the scope of the Corps\' jurisdiction over "navigable waters" under \xc2\xa7 404 of the\nAct.\n\n92\n\n\x0cIV\nA\nAn agency\'s construction of a statute it is charged with enforcing is entitled to deference if it\nis reasonable and not in conflict with the expressed intent of Congress. Chemical\nManufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S.116, 125 (1985);\nChevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.837, 842-845\n(1984). Accordingly, our review is limited to the question whether it is reasonable, in light of\nthe language, policies, and legislative history of the Act, for the Corps to exercise\njurisdiction over wetlands adjacent to, but not regularly flooded by, rivers, streams, and\nother hydrographic features more conventionally identifiable as "waters."8\nOn a purely linguistic level, it may appear unreasonable to classify "lands," wet or\notherwise, as "waters." Such a simplistic response, however, does justice neither to the\nproblem faced by the Corps in defining the scope of its authority under \xc2\xa7 404(a) nor to the\nrealities of the problem of water pollution that the Clean Water Act was intended to combat.\nIn determining the limits of its power to regulate discharges under the Act, the Corps must\nnecessarily choose some point at which water ends and land begins. Our common\nexperience tells us that this is often no easy task: the transition from water to solid ground\nis not necessarily or even typically an abrupt one. Rather, between open waters and dry\nland may lie shallows, marshes, mudflats, swamps, bogs -- in short, a huge array of areas\nthat are not wholly aquatic but nevertheless fall far short of being dry land. Where on this\ncontinuum to find the limit of "waters" is far from obvious. Faced with such a problem of\ndefining the bounds of its regulatory authority, an agency may appropriately look to the\nlegislative history and underlying policies of its statutory grants of authority. Neither of these\nsources provides unambiguous guidance for the Corps in this case, but together they do\nsupport the reasonableness of the Corps\' approach of defining adjacent wetlands as\n"waters" within the meaning of \xc2\xa7 404(a). Section 404 originated as part of the Federal\nWater Pollution Control Act Amendments of 1972, which constituted a comprehensive\nlegislative attempt "to restore and maintain the chemical, physical, and biological integrity of\nthe Nation\'s waters." CWA \xc2\xa7 101, 33 U.S.C. \xc2\xa7 1251. This objective incorporated a broad,\nsystemic view of the goal of maintaining and improving water quality: as the House Report\non the legislation put it, "the word integrity\' . . . refers to a condition in which the natural\nstructure and function of ecosystems [are] maintained." H.R.Rep. No. 92911, p. 76 (1972).\nProtection of aquatic ecosystems, Congress recognized, demanded broad federal authority\nto control pollution, for "[w]ater moves in hydrologic cycles, and it is essential that discharge\n8\n\nWe are not called upon to address the question of the authority of the Corps to regulate\ndischarges of fill material into wetlands that are not adjacent to bodies of open water, see\n33 C.F.R. \xc2\xa7\xc2\xa7 323.2(a)(2) and (3) (1985), and we do not express any opinion on that\nquestion.\n93\n\n\x0cof pollutants be controlled at the source." S.Rep.No. 92414, p. 77 (1972). In keeping with\nthese views, Congress chose to define the waters covered by the Act broadly. Although the\nAct prohibits discharges into "navigable waters," see CWA \xc2\xa7\xc2\xa7 301(a), 404(a), 502(12), 33\nU.S.C. \xc2\xa7\xc2\xa7 1311(a), 1344(a), 1362(12), the Act\'s definition of "navigable waters" as "the\nwaters of the United States" makes it clear that the term \xe2\x80\x9cnavigable" as used in the Act is of\nlimited import. In adopting this definition of "navigable waters," Congress evidently intended\nto repudiate limits that had been placed on federal regulation by earlier water pollution\ncontrol statutes, and to exercise its powers under the Commerce Clause to regulate at least\nsome waters that would not be deemed "navigable" under the classical understanding of\nthat term. See S.Conf.Rep. No. 921236, p. 144 (1972); 118 Cong. Rec. 3375633757(1972) (statement of Rep. Dingell). Of course, it is one thing to recognize that\nCongress intended to allow regulation of waters that might not satisfy traditional tests of\nnavigability; it is another to assert that Congress intended to abandon traditional notions of\n"waters" and include in that term "wetlands" as well. Nonetheless, the evident breadth of\ncongressional concern for protection of water quality and aquatic ecosystems suggests that\nit is reasonable for the Corps to interpret the term "waters" to encompass wetlands adjacent\nto waters as more conventionally defined. Following the lead of the Environmental\nProtection Agency, see 38 Fed. Reg. 10834 (1973), the Corps has determined that\nwetlands adjacent to navigable waters do, as a general matter, play a key role in protecting\nand enhancing water quality:\n"The regulation of activities that cause water pollution cannot rely on . . . artificial\nlines . . . , but must focus on all waters that together form the entire aquatic system.\n[*134] Water moves in hydrologic cycles, and the pollution of this part of the aquatic\nsystem, regardless of whether it is above or below an ordinary high water mark, or\nmean high tide line, will affect the water quality of the other waters within that\naquatic system." "For this reason, the landward limit of Federal jurisdiction under\nSection 404 must include any adjacent wetlands that form the border of or are in\nreasonable proximity to other waters of the United States, as these wetlands are\npart of this aquatic system."\n42 Fed.Reg. 37128 (1977).\nWe cannot say that the Corps\' conclusion that adjacent wetlands are inseparably bound up\nwith the "waters" of the United States -- based as it is on the Corps\' and EPA\'s technical\nexpertise -- is unreasonable. In view of the breadth of federal regulatory authority\ncontemplated by the Act itself and the inherent difficulties of defining precise bounds to\nregulable waters, the Corps\' ecological judgment about the relationship between waters\nand their adjacent wetlands provides an adequate basis for a legal judgment that adjacent\nwetlands may be defined as waters under the Act. This holds true even for wetlands that\nare not the result of flooding or permeation by water having its source in adjacent bodies of\nopen water. The Corps has concluded that wetlands may affect the water quality of\nadjacent lakes, rivers, and streams even when the waters of those bodies do not actually\n94\n\n\x0cinundate the wetlands. For example, wetlands that are not flooded by adjacent waters may\nstill tend to drain into those waters. In such circumstances, the Corps has concluded that\nwetlands may serve to filter and purify water draining into adjacent bodies of water, see 33\nC.F.R. \xc2\xa7 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and\nstreams, and thus prevent flooding and erosion, see \xc2\xa7\xc2\xa7 320.4(b)(2)(iv) and (v). In addition,\nadjacent wetlands may\n"serve significant natural biological functions, including food chain production,\ngeneral habitat, and nesting, spawning, rearing and resting sites for aquatic . . .\nspecies."\n\xc2\xa7 320.4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers,\nstreams, and other bodies of water may function as integral parts of the aquatic\nenvironment even when the moisture creating the wetlands does not find its source in the\nadjacent bodies of water. Again, we cannot say that the Corps\' judgment on these matters\nis unreasonable, and we therefore conclude that a definition of "waters of the United\nStates" encompassing all wetlands adjacent to other bodies of water over which the Corps\nhas jurisdiction is a permissible interpretation of the Act. Because respondent\'s property is\npart of a wetland that actually abuts on a navigable waterway, respondent was required to\nhave a permit in this case.9\nB\nFollowing promulgation of the Corps\' interim final regulations in 1975, the Corps\' assertion\nof authority under \xc2\xa7 404 over waters not actually navigable engendered some\ncongressional opposition. The controversy came to a head during Congress\' consideration\nof the Clean Water Act of 1977, a major piece of legislation aimed at achieving "interim\nimprovements within the existing framework" of the Clean Water Act. H.R.Rep. No. 95139,\npp. 1-2 (1977). In the end, however, as we shall explain, Congress acquiesced in the\nadministrative construction.\n\n9\n\nOf course, it may well be that not every adjacent wetland is of great importance to the\nenvironment of adjoining bodies of water. But the existence of such cases does not\nseriously undermine the Corps\' decision to define all adjacent wetlands as "waters." If it is\nreasonable for the Corps to conclude that, in the majority of cases, adjacent wetlands have\nsignificant effects on water quality and the aquatic ecosystem, its definition can stand. That\nthe definition may include some wetlands that are not significantly intertwined with the\necosystem of adjacent waterways is of little moment, for where it appears that a wetland\ncovered by the Corps\' definition is, in fact, lacking in importance to the aquatic environment,\nor where its importance is outweighed by other values the Corps may always allow\ndevelopment of the wetland for other uses simply by issuing a permit. See 33 C.F.R.\n\xc2\xa7 320.4(b)(4) (1986).\n95\n\n\x0c[The Court then cited portions of the legislative history of the enactment of the Clean Water\nAct of 1977 that demonstrated attempts to narrow the definition of navigable waters in the\nstatute.]\n***\nThe significance of Congress\' treatment of the Corps\' \xc2\xa7 404 jurisdiction in its consideration\nof the Clean Water Act of 1977 is twofold. First, the scope of the Corps\' asserted\njurisdiction over wetlands was specifically brought to Congress\' attention, and Congress\nrejected measures designed to curb the Corps\' jurisdiction, in large part because of its\nconcern that protection of wetlands would be unduly hampered by a narrowed definition of\n"navigable waters." Although we are chary of attributing significance to Congress\' failure to\nact, a refusal by Congress to overrule an agency\'s construction of legislation is at least\nsome evidence of the reasonableness of that construction, particularly where the\nadministrative construction has been brought to Congress\' attention through legislation\nspecifically designed to supplant it. See Bob Jones University v. United States, 461 U.S.\n574, 599-601 (1983); United States v. Rutherford, 442 U.S. 544, 442 U.S. 554, and n.10\n(1979).\nSecond, it is notable that even those who would have restricted the reach of the Corps\'\njurisdiction would have done so not by removing wetlands altogether from the definition of\n"waters of the United States," but only by restricting the scope of "navigable waters" under\n\xc2\xa7 404 to waters navigable in fact and their adjacent wetlands. In amending the definition of\n"navigable waters" for purposes of \xc2\xa7 404 only, the backers of the House bill would have left\nintact the existing definition of "navigable waters" for purposes of \xc2\xa7 301 of the Act, which\ngenerally prohibits discharges of pollutants into navigable waters. As the House Report\nexplained: "Navigable waters,\' as used in section 301, includes all of the waters of the\nUnited States, including their adjacent wetlands." H.R.Rep. No. 95139, p. 24 (1977). Thus,\neven those who thought that the Corps\' existing authority under \xc2\xa7 404 was too broad\nrecognized (1) that the definition of "navigable waters" then in force for both \xc2\xa7 301 and \xc2\xa7\n404 was reasonably interpreted to include adjacent wetlands, (2) that the water quality\nconcerns of the Clean Water Act demanded regulation of at least some discharges into\nwetlands, and (3) that whatever jurisdiction the Corps would retain over discharges of fill\nmaterial after passage of the 1977 legislation should extend to discharges into wetlands\nadjacent to any waters over which the Corps retained jurisdiction. These views provide\nadditional support for a conclusion that Congress in 1977 acquiesced in the Corps\'\ndefinition of waters as including adjacent wetlands.\nTwo features actually included in the legislation that Congress enacted in 1977 also\nsupport the view that the Act authorizes the Corps to regulate discharges into wetlands.\nFirst, in amending \xc2\xa7 404 to allow federally approved state permit programs to supplant\nregulation by the Corps of certain discharges of fill material, Congress provided that the\nStates would not be permitted to supersede the Corps\' jurisdiction to regulate discharges\n96\n\n\x0cinto actually navigable waters and waters subject to the ebb and flow of the tide, "including\nwetlands adjacent thereto." CWA \xc2\xa7 404(g)(1), 33 U.S.C.\xc2\xa7 1344(g)(1). Here, then, Congress\nexpressly stated that the term "waters" included adjacent wetlands.11 Second, the 1977 Act\nauthorized an appropriation of $6 million for completion by the Department of Interior of a\n"National Wetlands Inventory" to assist the States "in the development and operation of\nprograms under this Act." CWA \xc2\xa7 208(i)(2), 33U.S.C. \xc2\xa7 1288(i)(2). The enactment of this\nprovision reflects congressional recognition that wetlands are a concern of the Clean Water\nAct, and supports the conclusion that, in defining the waters covered by the Act to include\nwetlands, the Corps is "implementing congressional policy, rather than embarking on a\nfrolic of its own." Red Lion Broadcasting Co. v. FCC, 395 U.S.367, 375 (1969).\nC\nWe are thus persuaded that the language, policies, and history of the Clean Water Act\ncompel a finding that the Corps has acted reasonably in interpreting the Act to require\npermits for the discharge of fill material into wetlands adjacent to the "waters of the United\nStates." The regulation in which the Corps has embodied this interpretation, by its terms,\nincludes the wetlands on respondent\'s property within the class of waters that may not be\nfilled without a permit; and, as we have seen, there is no reason to interpret the regulation\nmore narrowly than its terms would indicate. Accordingly, the judgment of the Court of\nAppeals is\nReversed.\nQuestions and Comments\n1.\n\nThe Supreme Court reviewed both the legality of the Corps\xe2\x80\x99 regulation and the\nlegality of the Corps\xe2\x80\x99 interpretation of its regulation. Landmark Supreme Court\nadministrative law decisions provide that an agency\xe2\x80\x99s interpretation of its own\nregulation is controlling unless it is plainly erroneous or inconsistent with the\nregulation. See Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole\nRock & Sand Co., 325 U.S. 410, 414 (1945). Did the Sixth Circuit use that approach\nwhen reviewing the Corps\xe2\x80\x99 interpretation of \xe2\x80\x9cadjacent wetlands\xe2\x80\x9d? Does the Supreme\nCourt cite that precedent or apply that test in reviewing the Corps\xe2\x80\x99 interpretation of\n\xe2\x80\x9cadjacent\xe2\x80\x9d wetlands?\n\n11\n\nTo be sure, \xc2\xa7 404(g)(1) does not conclusively determine the construction to be placed on\nthe use of the term "waters" elsewhere in the Act (particularly in \xc2\xa7 502(7), which contains\nthe relevant definition of "navigable waters"); however, in light of the fact that the various\nprovisions of the Act should be read in pari materia, it does at least suggest strongly that\nthe term "waters," as used in the Act, does not necessarily exclude "wetlands."\n97\n\n\x0c2.\n\nGroundwater v. Surface Water: Did the Corps\xe2\x80\x99 regulations require a surface water\nconnection between wetlands and other waters for the wetlands to be considered\n\xe2\x80\x9cadjacent\xe2\x80\x9d to the waters? Was there a scientific justification for the Corps\xe2\x80\x99\ninterpretation and did the Court accord that any deference? Keep this in mind when\nreading the Supreme Court\xe2\x80\x99s decision in Rapanos v. United States. Incidentally, the\nCorps\xe2\x80\x99 current regulations define \xe2\x80\x9cadjacent\xe2\x80\x9d to mean \xe2\x80\x9cbordering, contiguous, or\nneighboring\xe2\x80\x9d and adjacent wetlands include wetlands \xe2\x80\x9cseparated from other waters\nof the United States by man-made dikes or barriers, natural river berms, beach\ndunes and the like.\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 328.3(c)\n\n3.\n\nIn reviewing the legality of the Corps\xe2\x80\x99 rule that asserted jurisdiction over \xe2\x80\x9cadjacent\nwetlands,\xe2\x80\x9d did the Court apply the Chevron analysis? Did the Court decide the case\nat Step 1 or Step 2? It is interesting to compare the Supreme Court\xe2\x80\x99s application of\nthe Chevron analysis in this case, Solid Waste Agency of Northern Cook County v.\nU.S. Army Corps of Engineers, and Rapanos v. United States.\n\n4.\n\nNavigability and the Commerce Clause: Does the Court conclude that \xe2\x80\x9cwaters\xe2\x80\x9d\nmust be \xe2\x80\x9cnavigable\xe2\x80\x9d to be regulated under the Clean Water Act? Is the Court\xe2\x80\x99s\narticulation of the breadth of the Corps\xe2\x80\x99 jurisdiction under the Act as broad as the\nCallaway court\xe2\x80\x99s?\n\n5.\n\nNote the Court\xe2\x80\x99s focus on the purposes of the Clean Water Act and the legislative\nhistory. How does the Corps\xe2\x80\x99 interpretation of the statute advance the purposes of\nthe statute or advance Congress\xe2\x80\x99 intent? This was a unanimous opinion from the\nCourt and it is interesting to compare the statutory analysis in this case with the\ntextualism adopted by the Supreme Court in many cases today.\n\n6.\n\nLegislative Acquiescence: What weight should courts accord to Congress\xe2\x80\x99 failure\nto enact legislation that overturns an agency\xe2\x80\x99s rules? Are you persuaded by the\nCourt\xe2\x80\x99s discussion of Congressional acquiescence?\n\n7.\n\nValues and Functions: Recall our discussion about the values and functions of\nwetlands in Chapter 1. The Riverside Bayview court acknowledges those values and\nfunctions in its opinion and defers to the Corps\xe2\x80\x99 scientific judgment in regulating\nadjacent wetlands because of the values and functions that they provide to the\nadjacent waters. Again, keep this in mind when reading the Supreme Court\xe2\x80\x99s\ndecision in Rapanos v. United States.\n\n8.\n\nAdjacent to What? As noted above, the Corps\xe2\x80\x99 1982 regulations asserted\njurisdiction over wetlands adjacent to traditional navigable waters, adjacent to\ninterstate waters, adjacent to tributaries of traditional navigable waters or interstate\nwaters, and adjacent to isolated, intrastate waters the use or misuse of which could\naffect interstate commerce. Which portions of the Corps\xe2\x80\x99 regulations were\n98\n\n\x0cchallenged in the Riverside Bayview case? Did the Court express any opinion\nregarding the legality of regulating other wetlands?\n9.\n\nPost-Script: The wetlands at issue in the Riverside Bayview case were not\ndeveloped, but were later used as compensatory mitigation for another wetlands\ndevelopment. See Royal C. Gardner, Lawyers, Swamps and Money 200 (Island\nPress 2011).\n\nC.\n\nIsolated Wetlands and Waters\n\nIn 1986, the year after the Supreme Court\xe2\x80\x99s decision in Riverside Bayview Homes, the\nCorps again amended its regulatory definition of \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d The Corps\ndid not change the categories of waters that would be regulated as \xe2\x80\x9cwaters of the United\nStates,\xe2\x80\x9d but renumbered the regulations, so that the definition of \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d now appears at 33 C.F.R. \xc2\xa7 328.3. In both the 1982 and 1986 regulations, the\nCorps defined \xe2\x80\x9cwaters of the United States\xe2\x80\x9d to include certain isolated, intrastate waters\nthat were not traditional navigable waters but that could be regulated because of their ties\nto interstate commerce. The 1986 regulation, which used essentially the same language as\nthe 1982 regulation, described the \xe2\x80\x9cisolated waters\xe2\x80\x9d that could be regulated as \xe2\x80\x9cwaters of\nthe United States\xe2\x80\x9d in the following manner:\n\n33 C.F.R. \xc2\xa7 328.3(a)(3)\nAll other waters such as intrastate lakes, rivers, streams (including intermittent\nstreams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,\nplaya lakes or natural ponds, the use degradation or destruction of which could affect\ninterstate or foreign commerce, including any such waters:\n(i) Which are or could be used by interstate or foreign travelers for recreational or\nother purposes;\n(ii) From which fish or shellfish could be taken and sold in interstate or foreign\ncommerce; or\n(iii) Which are used or could be used for industrial purpose by industries in interstate\ncommerce\n\n99\n\n\x0cAlthough the Corps did not make any significant changes to the categories of \xe2\x80\x9cwaters of the\nUnited States\xe2\x80\x9d regulated in the rule itself, the agency provided further guidance in the\npreamble to the rule regarding the types of \xe2\x80\x9cisolated waters\xe2\x80\x9d that would be regulated under\nthe Clean Water Act. See 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986). For instance, the\nCorps indicated that certain isolated waters would generally not be regulated as \xe2\x80\x9cwaters of\nthe United States,\xe2\x80\x9d although they could be regulated on a case-by-case basis. Those\nincluded non-tidal irrigation ditches; artificial lakes or ponds that are used for watering,\nirrigation, or settling basins; and various other artificially created waters.\nThe Migratory Bird Test: More significantly,\nthough, the Corps clarified that isolated waters\nwould generally be regulated under 33 C.F.R. \xc2\xa7\n328.3(a)(3) if the waters:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\na. * * * are or would be used as habitat by\nbirds protected by Migratory Bird Treaties;\nb. * * * are or would be used as habitat by\nother migratory birds which cross state lines;\nc. * * * are or would be used as habitat for\nendangered species; or\nd. used to irrigate crops sold in interstate Photo 23 Photo by S. Johnson\ncommerce.\xe2\x80\x9d See 51 Fed. Reg. at 41217.\n\nAs noted above, this \xe2\x80\x9cmigratory bird rule\xe2\x80\x9d was not adopted as a regulation but included in\nthe preamble to the regulation as guidance. In the years following the amendment of the\nrules, federal appellate courts reached opposing conclusions regarding the validity of the\n\xe2\x80\x9cmigratory bird rule.\xe2\x80\x9d The Ninth Circuit upheld regulation of artificial wetlands in basins that\nwere formerly used in salt production on the grounds that the Corps had determined that\nthe wetlands provided habitat for migratory birds and the endangered salt marsh harvest\nmouse. See Leslie Salt v. United States, 896 F.2d 354 (9th Cir. 1990), cert. denied, 486\nU.S. 1126 (1991). The Seventh Circuit, reviewing EPA\xe2\x80\x99s version of the test, initially\ninvalidated the test, see Hoffman Homes, Inc. v. Administrator, United States EPA, 961\nF.2d 1310 (7th Cir. 1992), but later upheld it. See Hoffman Homes, Inc. v. Administrator,\nUnited States EPA 975 F.2d 1554 (7th Cir. 1992). The Fourth Circuit expressed deeper\nconcerns and a divided panel of the Circuit suggested that the Corps exceeded its statutory\nauthority in regulating isolated waters generally simply because they could, rather than did,\naffect interstate commerce. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).\nThe dispute over the Corps\xe2\x80\x99 authority to regulate isolated waters reached the U.S. Supreme\nCourt in Solid Waste Agency of Northern Cook County v. United States Army Corps of\nEngineers. Sixteen years after Riverside Bayview Homes, the Court was reviewing another\ncase focusing on the government\xe2\x80\x99s Clean Water Act jurisdiction over \xe2\x80\x9cwaters of the United\n100\n\n\x0cStates.\xe2\x80\x9d Unlike the unanimous decision in Riverside Bayview Homes, the Solid Waste\nAgency case generated greater division among the Court, which issued a 5-4 decision.\nJustices Rehnquist, O\xe2\x80\x99Connor, Scalia, Kennedy and Thomas were in the majority, with\nJustices Stevens, Souter, Ginsburg, and Breyer dissenting.\n\nSolid Waste Agency of Northern\nCook County, v. United States\nArmy Corps of Engineers, et al.\n\nResources for the Case\nOral Argument Audio (from the Oyez Project)\nMap of the site - now the Heron Woods State\nHabitat Area - sold by SWANCC in 2001\nChicago Tribune news story re: permit denial\nWhat is a balefill - Rhode Island Dept. of Envtl.\nMgmt.\nSWANCC website\nUnedited opinion\nGoogle Map of all the cases in the coursebook\n\n531 U.S. 159 (2001)\nCHIEF JUSTICE REHNQUIST delivered\nthe opinion of the Court.\n\nSection 404(a) of the Clean Water Act (CWA or Act), 86 Stat. 884, as amended, 33 U.S.C.\n\xc2\xa7 1344(a), regulates the discharge of dredged or fill material into \xe2\x80\x9cnavigable waters.\xe2\x80\x9d The\nUnited States Army Corps of Engineers (Corps), has interpreted \xc2\xa7 404(a) to confer federal\nauthority over an abandoned sand and gravel pit in northern Illinois which provides habitat\nfor migratory birds. We are asked to decide whether the provisions of \xc2\xa7 404(a) may be fairly\nextended to these waters, and, if so, whether Congress could exercise such authority\nconsistent with the Commerce Clause, U. S. Const., Art. I, \xc2\xa7 8, cl. 3. We answer the first\nquestion in the negative and therefore do not reach the second.\nPetitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium of\n23 suburban Chicago cities and villages that united in an effort to locate and develop a\ndisposal site for baled nonhazardous solid waste. The Chicago Gravel Company informed\nthe municipalities of the availability of a 533-acre parcel, bestriding the Illinois counties\nCook and Kane, which had been the site of a sand and gravel pit mining operation for three\ndecades up until about 1960. Long since abandoned, the old mining site eventually gave\nway to a successional stage forest, with its remnant excavation trenches evolving into a\nscattering of permanent and seasonal ponds of varying size (from under one-tenth of an\nacre to several acres) and depth (from several inches to several feet). The municipalities\ndecided to purchase the site for disposal of their baled nonhazardous solid waste. By law,\nSWANCC was required to file for various permits from Cook County and the State of Illinois\nbefore it could begin operation of its balefill project. In addition, because the operation\ncalled for the filling of some of the permanent and seasonal ponds, SWANCC contacted\nfederal respondents (hereinafter respondents), including the Corps, to determine if a\nfederal landfill permit was required under \xc2\xa7 404(a) of the CWA, 33 U.S.C. \xc2\xa7 1344(a).\n101\n\n\x0cSection 404(a) grants the Corps authority to issue permits \xe2\x80\x9cfor the discharge of dredged or\nfill material into the navigable waters at specified disposal sites.\xe2\x80\x9d Ibid. The term \xe2\x80\x9cnavigable\nwaters\xe2\x80\x9d is defined under the Act as \xe2\x80\x9cthe waters of the United States, including the territorial\nseas.\xe2\x80\x9d \xc2\xa7 1362(7). The Corps has issued regulations defining the term \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d to include \xe2\x80\x9cwaters such as intrastate lakes, rivers, streams (including intermittent\nstreams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa\nlakes, or natural ponds, the use, degradation or destruction of which could affect interstate\nor foreign commerce . . . .\xe2\x80\x9d 33 C.F.R. \xc2\xa7 328.3(a)(3) (1999).\nIn 1986, in an attempt to \xe2\x80\x9cclarify\xe2\x80\x9d the reach of its jurisdiction, the Corps stated that \xc2\xa7 404(a)\nextends to intrastate waters:\n\xe2\x80\x9ca.\n\xe2\x80\x9cb.\n\xe2\x80\x9cc.\n\xe2\x80\x9cd.\n\nWhich are or would be used as habitat by birds protected by Migratory Bird Treaties;\nor\nWhich are or would be used as habitat by other migratory birds which cross state\nlines; or\nWhich are or would be used as habitat for endangered species; or\nUsed to irrigate crops sold in interstate commerce.\xe2\x80\x9d\n\n51 Fed. Reg. 41217.\nThis last promulgation has been dubbed the \xe2\x80\x9cMigratory Bird Rule.\xe2\x80\x9d1 The Corps initially\nconcluded that it had no jurisdiction over the site because it contained no \xe2\x80\x9cwetlands,\xe2\x80\x9d or\nareas which support \xe2\x80\x9cvegetation typically adapted for life in saturated soil conditions,\xe2\x80\x9d 33\nC.F.R. \xc2\xa7 328.3(b) (1999). However, after the Illinois Nature Preserves Commission\ninformed the Corps that a number of migratory bird species had been observed at the site,\nthe Corps reconsidered and ultimately asserted jurisdiction over the balefill site pursuant to\nsubpart (b) of the \xe2\x80\x9cMigratory Bird Rule.\xe2\x80\x9d The Corps found that approximately 121 bird\nspecies had been observed at the site, including several known to depend upon aquatic\nenvironments for a significant portion of their life requirements. Thus, on November 16,\n1987, the Corps formally \xe2\x80\x9cdetermined that the seasonally ponded, abandoned gravel\nmining depressions located on the project site, while not wetlands, did qualify as \xe2\x80\x98waters of\nthe United States\xe2\x80\x99 . . . based upon the following criteria: (1) the proposed site had been\nabandoned as a gravel mining operation; (2) the water areas and spoil piles had developed\na natural character; and (3) the water areas are used as habitat by migratory bird [sic]\nwhich cross state lines.\xe2\x80\x9d * * * During the application process, SWANCC made several\nproposals to mitigate the likely displacement of the migratory birds and to preserve a great\nblue heron rookery located on the site. Its balefill project ultimately received the necessary\n1\n\nThe Corps issued the "Migratory Bird Rule" without following the notice and comment\nprocedures outlined in the Administrative Procedure Act, 5 U.S.C. \xc2\xa7 553.\n102\n\n\x0clocal and state approval. By 1993, SWANCC had received a special use planned\ndevelopment permit from the Cook County Board of Appeals, a landfill development permit\nfrom the Illinois Environmental Protection Agency, and approval from the Illinois\nDepartment of Conservation.\nDespite SWANCC\xe2\x80\x99s securing the required water quality certification from the Illinois\nEnvironmental Protection Agency, the Corps refused to issue a \xc2\xa7 404(a) permit. * * *\nPetitioner filed suit under the Administrative Procedure Act, 5 U.S.C. \xc2\xa7 701 et seq., in the\nNorthern District of Illinois challenging both the Corps\xe2\x80\x99 jurisdiction over the site and the\nmerits of its denial of the \xc2\xa7404(a) permit. The District Court granted summary judgment to\nrespondents on the jurisdictional issue, and petitioner abandoned its challenge to the\nCorps\xe2\x80\x99 permit decision. On appeal to the Court of Appeals for the Seventh Circuit, petitioner\nrenewed its attack on respondents\xe2\x80\x99 use of the \xe2\x80\x9cMigratory Bird Rule\xe2\x80\x9d to assert jurisdiction\nover the site. Petitioner argued that respondents had exceeded their statutory authority in\ninterpreting the CWA to cover nonnavigable, isolated, intrastate waters based upon the\npresence of migratory birds and, in the alternative, that Congress lacked the power under\nthe Commerce Clause to grant such regulatory jurisdiction. The Court of Appeals began its\nanalysis with the constitutional question, holding that Congress has the authority to regulate\nsuch waters based upon \xe2\x80\x9cthe cumulative impact doctrine, under which a single activity that\nitself has no discernible effect on interstate commerce may still be regulated if the\naggregate effect of that class of activity has a substantial impact on interstate commerce.\xe2\x80\x9d\n* * * The aggregate effect of the \xe2\x80\x9cdestruction of the natural habitat of migratory birds\xe2\x80\x9d on\ninterstate commerce, the court held, was substantial because each year millions of\nAmericans cross state lines and spend over a billion dollars to hunt and observe migratory\nbirds.2 * * * The Court of Appeals then turned to the regulatory question. The court held\nthat the CWA reaches as many waters as the Commerce Clause allows and, given its\nearlier Commerce Clause ruling, it therefore followed that respondents\xe2\x80\x99 \xe2\x80\x9cMigratory Bird\nRule\xe2\x80\x9d was a reasonable interpretation of the Act. * * * We granted certiorari, * * * and now\nreverse.\nCongress passed the CWA for the stated purpose of \xe2\x80\x9crestor[ing] and maintain[ing] the\nchemical, physical, and biological integrity of the Nation\xe2\x80\x99s waters.\xe2\x80\x9d 33 U.S.C. \xc2\xa71251(a). In\nso doing, Congress chose to \xe2\x80\x9crecognize, preserve, and protect the primary responsibilities\nand rights of States to prevent, reduce, and eliminate pollution, to plan the development\nand use (including restoration, preservation, and enhancement) of land and water\n2\n\nRelying upon its earlier decision in Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (CA7\n1993), and a report from the United States Census Bureau, the Court of Appeals found that\nin 1996 approximately 3.1 million Americans spent $1.3 billion to hunt migratory birds (with\n11 percent crossing state lines to do so) as another 17.7 million Americans observed\nmigratory birds (with 9.5 million traveling for the purpose of observing shorebirds). See 191\nF.3d, at 850.\n103\n\n\x0cresources, and to consult with the Administrator in the exercise of his authority under this\nchapter.\xe2\x80\x9d \xc2\xa7 1251(b). Relevant here, \xc2\xa7 404(a) authorizes respondents to regulate the\ndischarge of fill material into \xe2\x80\x9cnavigable waters,\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(a), which the statute\ndefines as \xe2\x80\x9cthe waters of the United States, including the territorial seas,\xe2\x80\x9d \xc2\xa7 1362(7).\nRespondents have interpreted these words to cover the abandoned gravel pit at issue here\nbecause it is used as habitat for migratory birds. We conclude that the \xe2\x80\x9cMigratory Bird Rule\xe2\x80\x9d\nis not fairly supported by the CWA.\nThis is not the first time we have been called upon to evaluate the meaning of \xc2\xa7 404(a). In\nUnited States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), we held that the\nCorps had \xc2\xa7 404(a) jurisdiction over wetlands that actually abutted on a navigable\nwaterway. In so doing, we noted that the term \xe2\x80\x9cnavigable\xe2\x80\x9d is of \xe2\x80\x9climited import\xe2\x80\x9d and that\nCongress evidenced its intent to \xe2\x80\x9cregulate at least some waters that would not be deemed\n\xe2\x80\x98navigable\xe2\x80\x99 under the classical understanding of that term.\xe2\x80\x9d Id., at 133. But our holding was\nbased in large measure upon Congress\xe2\x80\x99 unequivocal acquiescence to, and approval of, the\nCorps\xe2\x80\x99 regulations interpreting the CWA to cover wetlands adjacent to navigable waters.\nSee id., at 135\xe2\x80\x93139. We found that Congress\xe2\x80\x99 concern for the protection of water quality\nand aquatic ecosystems indicated its intent to regulate wetlands \xe2\x80\x9cinseparably bound up with\nthe \xe2\x80\x98waters\xe2\x80\x99 of the United States.\xe2\x80\x9d Id., at 134.\nIt was the significant nexus between the wetlands and \xe2\x80\x9cnavigable waters\xe2\x80\x9d that informed our\nreading of the CWA in Riverside Bayview Homes. Indeed, we did not \xe2\x80\x9cexpress any opinion\xe2\x80\x9d\non the \xe2\x80\x9cquestion of the authority of the Corps to regulate discharges of fill material into\nwetlands that are not adjacent to bodies of open water . . . .\xe2\x80\x9d Id., at 131\xe2\x80\x93132, n.8. In order\nto rule for respondents here, we would have to hold that the jurisdiction of the Corps\nextends to ponds that are not adjacent to open water. But we conclude that the text of the\nstatute will not allow this.\nIndeed, the Corps\xe2\x80\x99 original interpretation of the CWA, promulgated two years after its\nenactment, is inconsistent with that which it espouses here. Its 1974 regulations defined\n\xc2\xa7 404(a)\xe2\x80\x99s \xe2\x80\x9cnavigable waters\xe2\x80\x9d to mean \xe2\x80\x9cthose waters of the United States which are subject\nto the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in\nthe future susceptible for use for purposes of interstate or foreign commerce.\xe2\x80\x9d 33 C.F.R.\n\xc2\xa7 209.120(d)(1). The Corps emphasized that \xe2\x80\x9c[i]t is the water body\xe2\x80\x99s capability of use by the\npublic for purposes of transportation or commerce which is the determinative factor.\xe2\x80\x9d\n\xc2\xa7 209.260(e)(1). Respondents put forward no persuasive evidence that the Corps mistook\nCongress\xe2\x80\x99 intent in 1974.3\n3\n\nRespondents refer us to portions of the legislative history that they believe indicate\nCongress\xe2\x80\x99 intent to expand the definition of \xe2\x80\x9cnavigable waters.\xe2\x80\x9d Although the Conference\nReport includes the statement that the conferees \xe2\x80\x9cintend that the term \xe2\x80\x98navigable waters\xe2\x80\x99 be\ngiven the broadest possible constitutional interpretation,\xe2\x80\x9d S. Conf. Rep. No. 92\xe2\x80\x931236, p.\n144 (1972), neither this, nor anything else in the legislative history to which respondents\n104\n\n\x0cRespondents next contend that whatever its original aim in 1972, Congress charted a new\ncourse five years later when it approved the more expansive definition of \xe2\x80\x9cnavigable\nwaters\xe2\x80\x9d found in the Corps\xe2\x80\x99 1977 regulations. In July 1977, the Corps formally adopted 33\nC.F.R. \xc2\xa7 323.2(a)(5) (1978), which defined \xe2\x80\x9cwaters of the United States\xe2\x80\x9d to include \xe2\x80\x9cisolated\nwetlands and lakes, intermittent streams, prairie potholes, and other waters that are not\npart of a tributary system to interstate waters or to navigable waters of the United States,\nthe degradation or destruction of which could affect interstate commerce.\xe2\x80\x9d\nRespondents argue that Congress was aware of this more expansive interpretation during\nits 1977 amendments to the CWA. Specifically, respondents point to a failed House bill,\nH.R. 3199, that would have defined \xe2\x80\x9cnavigable waters\xe2\x80\x9d as \xe2\x80\x9call waters which are presently\nused, or are susceptible to use in their natural condition or by reasonable improvement as a\nmeans to transport interstate or foreign commerce.\xe2\x80\x9d 123 Cong. Rec. 10420, 10434 (1977).4\nThey also point to the passage in \xc2\xa7 404(g)(1) that authorizes a State to apply to the\nEnvironmental Protection Agency for permission \xe2\x80\x9cto administer its own individual and\ngeneral permit program for the discharge of dredged or fill material into the navigable\nwaters (other than those waters which are presently used, or are susceptible to use in their\nnatural condition or by reasonable improvement as a means to transport interstate or\nforeign commerce . . . including wetlands adjacent thereto) within its jurisdiction . . . .\xe2\x80\x9d 33\nU.S.C. \xc2\xa7 1344(g)(1). The failure to pass legislation that would have overturned the Corps\xe2\x80\x99\n1977 regulations and the extension of jurisdiction in \xc2\xa7 404(g) to waters \xe2\x80\x9cother than\xe2\x80\x9d\ntraditional \xe2\x80\x9cnavigable waters,\xe2\x80\x9d respondents submit, indicate that Congress recognized and\naccepted a broad definition of \xe2\x80\x9cnavigable waters\xe2\x80\x9d that includes nonnavigable, isolated,\nintrastate waters.\nAlthough we have recognized congressional acquiescence to administrative interpretations\nof a statute in some situations, we have done so with extreme care. * * * \xe2\x80\x9c[F]ailed legislative\nproposals are \xe2\x80\x98a particularly dangerous ground on which to rest an interpretation of a prior\nstatute.\xe2\x80\x99\xe2\x80\x9d Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S.\n164, 187 (1994) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S.\n633, 650 (1990)). A bill can be proposed for any number of reasons, and it can be rejected\nfor just as many others. The relationship between the actions and inactions of the 95th\nCongress and the intent of the 92d Congress in passing \xc2\xa7 404(a) is also considerably\nattenuated. Because \xe2\x80\x9csubsequent history is less illuminating than the contemporaneous\npoint, signifies that Congress intended to exert anything more than its commerce power\nover navigation. Indeed, respondents admit that the legislative history is somewhat\nambiguous. See Brief for Federal Respondents 24.\n4\n\nWhile this bill passed in the House, a similarly worded amendment to a bill originating in\nthe Senate, S. 1952, failed. See 123 Cong. Rec. 26710, 26728 (1977).\n105\n\n\x0cevidence,\xe2\x80\x9d Hagen v. Utah, 510 U.S. 399, 420 (1994), respondents face a difficult task in\novercoming the plain text and import of \xc2\xa7 404(a).\nWe conclude that respondents have failed to make the necessary showing that the failure\nof the 1977 House bill demonstrates Congress\xe2\x80\x99 acquiescence to the Corps\xe2\x80\x99 regulations or\nthe \xe2\x80\x9cMigratory Bird Rule,\xe2\x80\x9d which, of course, did not first appear until 1986. Although\nrespondents cite some legislative history showing Congress\xe2\x80\x99 recognition of the Corps\xe2\x80\x99\nassertion of jurisdiction over \xe2\x80\x9cisolated waters,\xe2\x80\x9d* * * as we explained in Riverside Bayview\nHomes, \xe2\x80\x9c[i]n both Chambers, debate on the proposals to narrow the definition of navigable\nwaters centered largely on the issue of wetlands preservation.\xe2\x80\x9d 474 U.S., at 136. Beyond\nCongress\xe2\x80\x99 desire to regulate wetlands adjacent to \xe2\x80\x9cnavigable waters,\xe2\x80\x9d respondents point us\nto no persuasive evidence that the House bill was proposed in response to the Corps\xe2\x80\x99 claim\nof jurisdiction over nonnavigable, isolated, intrastate waters or that its failure indicated\ncongressional acquiescence to such jurisdiction.\nSection 404(g) is equally unenlightening. In Riverside Bayview Homes we recognized that\nCongress intended the phrase \xe2\x80\x9cnavigable waters\xe2\x80\x9d to include \xe2\x80\x9cat least some waters that\nwould not be deemed \xe2\x80\x98navigable\xe2\x80\x99 under the classical understanding of that term.\xe2\x80\x9d Id., at\n133. But \xc2\xa7 404(g) gives no intimation of what those waters might be; it simply refers to them\nas \xe2\x80\x9cother . . . waters.\xe2\x80\x9d Respondents conjecture that \xe2\x80\x9cother . . . waters\xe2\x80\x9d must incorporate the\nCorps\xe2\x80\x99 1977 regulations, but it is also plausible, as petitioner contends, that Congress\nsimply wanted to include all waters adjacent to \xe2\x80\x9cnavigable waters,\xe2\x80\x9d such as nonnavigable\ntributaries and streams. The exact meaning of \xc2\xa7 404(g) is not before us and we express no\nopinion on it, but for present purposes it is sufficient to say, as we did in Riverside Bayview\nHomes, that \xe2\x80\x9c\xc2\xa7 404(g)(1) does not conclusively determine the construction to be placed on\nthe use of the term \xe2\x80\x98waters\xe2\x80\x99 elsewhere in the Act (particularly in \xc2\xa7 502(7), which contains\nthe relevant definition of \xe2\x80\x98navigable waters\xe2\x80\x99) . . . .\xe2\x80\x9d Id., at 138, n.11.* * *\nWe thus decline respondents\xe2\x80\x99 invitation to take what they see as the next ineluctable step\nafter Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly\nlocated within two Illinois counties, fall under \xc2\xa7 404(a)\xe2\x80\x99s definition of \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nbecause they serve as habitat for migratory birds. As counsel for respondents conceded at\noral argument, such a ruling would assume that \xe2\x80\x9cthe use of the word navigable in the\nstatute . . . does not have any independent significance.\xe2\x80\x9d * * * We cannot agree that\nCongress\xe2\x80\x99 separate definitional use of the phrase \xe2\x80\x9cwaters of the United States\xe2\x80\x9d constitutes\na basis for reading the term \xe2\x80\x9cnavigable waters\xe2\x80\x9d out of the statute. We said in Riverside\nBayview Homes that the word \xe2\x80\x9cnavigable\xe2\x80\x9d in the statute was of \xe2\x80\x9climited effect\xe2\x80\x9d and went on\nto hold that \xc2\xa7 404(a) extended to nonnavigable wetlands adjacent to open waters. But it is\none thing to give a word limited effect and quite another to give it no effect whatever. The\nterm \xe2\x80\x9cnavigable\xe2\x80\x9d has at least the import of showing us what Congress had in mind as its\nauthority for enacting the CWA: its traditional jurisdiction over waters that were or had been\nnavigable in fact or which could reasonably be so made. See, e.g., United States v.\nAppalachian Elec. Power Co., 311 U.S. 377, 407\xe2\x80\x93408 (1940).\n106\n\n\x0cRespondents\xe2\x80\x94 relying upon all of the arguments addressed above\xe2\x80\x94 contend that, at the\nvery least, it must be said that Congress did not address the precise question of \xc2\xa7 404(a)\xe2\x80\x99s\nscope with regard to nonnavigable, isolated, intrastate waters, and that, therefore, we\nshould give deference to the \xe2\x80\x9cMigratory Bird Rule.\xe2\x80\x9d See, e.g., Chevron U. S. A. Inc. v.\nNatural Resources Defense Council, Inc., 467 U.S. 837 (1984). We find \xc2\xa7 404(a) to be\nclear, but even were we to agree with respondents, we would not extend Chevron\ndeference here.\nWhere an administrative interpretation of a statute invokes the outer limits of Congress\xe2\x80\x99\npower, we expect a clear indication that Congress intended that result. See Edward J.\nDeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575\n(1988). This requirement stems from our prudential desire not to needlessly reach\nconstitutional issues and our assumption that Congress does not casually authorize\nadministrative agencies to interpret a statute to push the limit of congressional authority.\nSee ibid. This concern is heightened where the administrative interpretation alters the\nfederal state framework by permitting federal encroachment upon a traditional state power.\nSee United States v. Bass, 404 U.S. 336, 349 (1971) (\xe2\x80\x9c[U]nless Congress conveys its\npurpose clearly, it will not be deemed to have significantly changed the federal-state\nbalance\xe2\x80\x9d). Thus, \xe2\x80\x9cwhere an otherwise acceptable construction of a statute would raise\nserious constitutional problems, the Court will construe the statute to avoid such problems\nunless such construction is plainly contrary to the intent of Congress.\xe2\x80\x9d DeBartolo, supra, at\n575.\nTwice in the past six years we have reaffirmed the proposition that the grant of authority to\nCongress under the Commerce Clause, though broad, is not unlimited. See United States\nv. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).\nRespondents argue that the \xe2\x80\x9cMigratory Bird Rule\xe2\x80\x9d falls within Congress\xe2\x80\x99 power to regulate\nintrastate activities that \xe2\x80\x9csubstantially affect\xe2\x80\x9d interstate commerce. They note that the\nprotection of migratory birds is a \xe2\x80\x9cnational interest of very nearly the first magnitude,\xe2\x80\x9d\nMissouri v. Holland, 252 U.S. 416, 435 (1920), and that, as the Court of Appeals found,\nmillions of people spend over a billion dollars annually on recreational pursuits relating to\nmigratory birds. These arguments raise significant constitutional questions. For example,\nwe would have to evaluate the precise object or activity that, in the aggregate, substantially\naffects interstate commerce. This is not clear, for although the Corps has claimed\njurisdiction over petitioner\xe2\x80\x99s land because it contains water areas used as habitat by\nmigratory birds, respondents now, post litem motam, focus upon the fact that the regulated\nactivity is petitioner\xe2\x80\x99s municipal landfill, which is \xe2\x80\x9cplainly of a commercial nature.\xe2\x80\x9d * * * But\nthis is a far cry, indeed, from the \xe2\x80\x9cnavigable waters\xe2\x80\x9d and \xe2\x80\x9cwaters of the United States\xe2\x80\x9d to\nwhich the statute by its terms extends.\nThese are significant constitutional questions raised by respondents\xe2\x80\x99 application of their\nregulations, and yet we find nothing approaching a clear statement from Congress that it\nintended \xc2\xa7 404(a) to reach an abandoned sand and gravel pit such as we have here.\n107\n\n\x0cPermitting respondents to claim federal jurisdiction over ponds and mudflats falling within\nthe \xe2\x80\x9cMigratory Bird Rule\xe2\x80\x9d would result in a significant impingement of the States\xe2\x80\x99 traditional\nand primary power over land and water use. See, e.g., Hess v. Port Authority TransHudson Corporation, 513 U.S. 30, 44 (1994) (\xe2\x80\x9c[R]egulation of land use [is] a function\ntraditionally performed by local governments\xe2\x80\x9d). Rather than expressing a desire to readjust\nthe federal-state balance in this manner, Congress chose to \xe2\x80\x9crecognize, preserve, and\nprotect the primary responsibilities and rights of States . . . to plan the development and\nuse . . . of land and water resources . . . .\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1251(b). We thus read the statute as\nwritten to avoid the significant constitutional and federalism questions raised by\nrespondents\xe2\x80\x99 interpretation, and therefore reject the request for administrative deference. 8\nWe hold that 33 C.F.R. \xc2\xa7 328.3(a)(3) (1999), as clarified and applied to petitioner\xe2\x80\x99s balefill\nsite pursuant to the \xe2\x80\x9cMigratory Bird Rule,\xe2\x80\x9d 51 Fed. Reg. 41217 (1986), exceeds the\nauthority granted to respondents under \xc2\xa7404(a) of the CWA. The judgment of the Court of\nAppeals for the Seventh Circuit is therefore\nReversed.\nQuestions and Comments\n1.\n\nDid the Solid Waste Agency case involve wetlands? If not, what implications does\nthe case have for regulation of wetlands?\n\n2.\n\nArtificial Wetlands: Note that the ponds in Solid Waste Agency of Northern Cook\nCounty were artificially created. Even though the Court did not find jurisdiction over\nthe ponds in this case, man-made ponds and wetlands can be regulated as \xe2\x80\x9cwaters\nof the United States\xe2\x80\x9d under the Clean Water Act. See, e.g., Leslie Salt Co. v. United\nStates, 896 F.2d 354 (9th Cir. 1990); Texas Mun. Power Agency v. EPA, 836 F.2d\n1482 (5th Cir. 1988).\n\n3.\n\nCould the \xe2\x80\x9cmigratory bird rule\xe2\x80\x9d have been challenged on procedural grounds? With\nwhat success?\n\n4.\n\nThe \xe2\x80\x9cmigratory bird rule\xe2\x80\x9d was not adopted as a rule through notice and comment\nrulemaking. Is it appropriate, therefore, to use the Chevron analysis to review the\nCorps\xe2\x80\x99 decision? If Chevron doesn\xe2\x80\x99t apply, should courts accord the agency any\ndeference? More or less than under the Chevron analysis? What weight should the\nCorps\xe2\x80\x99 1974 rules carry, in light of the fact that the Corps rejected the reasoning\n\n8\n\nBecause violations of the CWA carry criminal penalties, see 33 U. S.C. \xc2\xa7 1319(c)(2),\npetitioner invokes the rule of lenity as another basis for rejecting the Corps\' interpretation of\nthe CWA. Brief for Petitioner 31\xe2\x80\x9332. We need not address this alternative argument. See\nUnited States v. Shabani, 513 U.S. 10, 17 (1994).\n108\n\n\x0cbehind them almost 25 years before the Solid Waste Agency decision?\n5.\n\nDoes the Court use the Chevron analysis in this case? If so, does it decide the case\nat step 1 or step 2? What canons of statutory analysis are central to the Court\xe2\x80\x99s\nholding?\n\n6.\n\nIn Riverside Bayview Homes, the Court interpreted the Clean Water Act broadly in\naccordance with its purposes and relied on evidence of Congressional\nacquiescence in the Corps\xe2\x80\x99 interpretation of the statute to uphold the Corps\xe2\x80\x99\nregulation of adjacent wetlands. Does the Court ignore those purposes and\nevidence of Congressional acquiescence in this case? Does it focus on other\nstatutory goals? The dissenting Justices argued for a broad interpretation of the\nstatute consistent with the purposes articulated in Riverside Bayview Homes. They\nnoted, for instance, that the statute protects significant natural biological functions,\nincluding food chain production, general habitat, and nesting spawning, rearing and\nresting sites for aquatic wildlife and that isolated waters provide those functions,\nregardless of whether they have any connection to traditional navigable waters. See\n531 U.S. at 181-182 (Stevens, dissenting).\n\n7.\n\nRiverside Bayview Homes and the D.C. District Court\xe2\x80\x99s Callaway decision seemed\nto approve a broad reading of jurisdiction under the Clean Water Act to extend to all\nwaters that could be regulated under the Commerce Clause. Does the majority in\nthis case adopt a narrower vision of the breadth of authority? The dissenting\nJustices argued that Congress\xe2\x80\x99 Commerce Clause power over navigation is clearly\nmore limited than Congress\xe2\x80\x99 Commerce Clause power generally. See 531 U.S. at\n181 (Stevens, dissenting).\nWhile the Court does not overrule Riverside Bayview Homes, the majority makes it\nclear that the prior case did not address isolated waters and that the Court upheld\nthe regulation of adjacent wetlands in Riverside Bayview Homes because of the\n\xe2\x80\x9csignificant nexus\xe2\x80\x9d between the wetlands and more traditional \xe2\x80\x9cnavigable waters.\xe2\x80\x9d Is\nthe Court saying that the Corps can only regulate traditional navigable waters or\nwaters that have some connection to traditional navigable waters? The dissenting\njustices asserted that the Court\xe2\x80\x99s decision could limit jurisdiction to actually\nnavigable waters, their tributaries, and wetlands adjacent to each. See 531 U.S. at\n177 (Stevens, dissenting).\n\n8.\n\nHow broad is the Court\xe2\x80\x99s decision in the Solid Waste Agency case? Is the Court\nsimply striking down the migratory bird test, or is it invalidating the regulation of\nisolated waters more generally? If the Corps can regulate isolated waters after the\nSolid Waste Agency decision, which isolated waters can it regulate?\n\n9.\n\nDid the Court reach the question of whether the regulation of isolated waters based\n109\n\n\x0con the migratory bird test violated the Commerce Clause? The dissent argued that\nsuch regulation was clearly constitutional. The portion of the dissenting opinion\naddressing that issue follows. Are you persuaded? For various views on the impact\nof the Solid Waste Agency decision shortly after the Court issued the decision, see\nRobin Kundis Craig, Beyond SWANCC: The New Federalism and Clean Water Act\nJurisdiction, 33 Envtl. L. 113 (2003); Christine A. Klein, The Environmental\nCommerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003); Bradford C. Mank, The Murky\nFuture of the Clean Water Act After SWANCC: Using a Hydrological Connection\nApproach to Saving the Clean Water Act, 30 Ecology L.Q. 811 (2003). For an\nexploration of the issue published prior to the Lucas decision, see Stephen M.\nJohnson, Federal Regulation of Isolated Wetlands, 23 Envtl. L. 1 (1993). For a\ndefense of the constitutionalty of federal regulation of isolated wetlands, see Blake\nHudson and Mike Hardig, Isolated Wetland Commons and the Constitution, 2014\nB.Y.U. L. Rev. 1443.\n\nSolid Waste Agency of Northern Cook County, v. United States Army\nCorps of Engineers, et al.\nJUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and\nJUSTICE BREYER join, dissenting.\n***\nIV\nBecause I am convinced that the Court\'s miserly construction of the statute is incorrect, I\nshall comment briefly on petitioner\'s argument that Congress is without power to prohibit it\nfrom filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The\nCorps\' exercise of its \xc2\xa7 404 permitting power over "isolated" waters that serve as habitat for\nmigratory birds falls well within the boundaries set by this Court\'s Commerce Clause\njurisprudence.\nIn United States v. Lopez, 514 U.S. 549, 558-559 (1995), this Court identified "three broad\ncategories of activity that Congress may regulate under its commerce power": (1) channels\nof interstate commerce; (2) instrumentalities of interstate commerce, or persons and things\nin interstate commerce; and (3) activities that "substantially affect" interstate commerce.\nIbid. The migratory bird rule at issue here is properly analyzed under the third category. In\norder to constitute a proper exercise of Congress\' power over intrastate activities that\n"substantially affect" interstate commerce, it is not necessary that each individual instance\nof the activity substantially affect commerce; it is enough that, taken in the aggregate, the\nclass of activities in question has such an effect. Perez v. United States, 402 U.S. 146\n(1971) (noting that it is the "class" of regulated activities, not the individual instance, that is\n110\n\n\x0cto be considered in the "affects" commerce analysis); see also Hodel, 452 U.S., at 277;\nWickard v. Filburn, 317 U.S. 111, 127-128 (1942).\nThe activity being regulated in this case (and by the Corps\' \xc2\xa7 404 regulations in general) is\nthe discharge of fill material into water. The Corps did not assert jurisdiction over\npetitioner\'s land simply because the waters were "used as habitat by migratory birds." It\nasserted jurisdiction because petitioner planned to discharge fill into waters "used as\nhabitat by migratory birds." Had petitioner intended to engage in some other activity\nbesides discharging fill (i. e., had there been no activity to regulate), or, conversely, had the\nwaters not been habitat for migratory birds (i. e., had there been no basis for federal\njurisdiction), the Corps would never have become involved in petitioner\'s use of its land.\nThere can be no doubt that, unlike the class of activities Congress was attempting to\nregulate in United States v. Morrison, 529 U.S. 598, 613 (2000) ("[g]endermotivated\ncrimes"), and Lopez, 514 U.S., at 561 (possession of guns near school property), the\ndischarge of fill material into the Nation\'s waters is almost always undertaken for economic\nreasons. See V. Albrecht & B. Goode, Wetland Regulation in the Real World, Exh. 3 (Feb.\n1994) (demonstrating that the overwhelming majority of acreage for which \xc2\xa7 404 permits\nare sought is intended for commercial, industrial, or other economic use).15\nMoreover, no one disputes that the discharge of fill into "isolated" waters that serve as\nmigratory bird habitat will, in the aggregate, adversely affect migratory bird populations.\nSee, e. g., 1 Secretary of the Interior, Report to Congress, The Impact of Federal Programs\non Wetlands: The Lower Mississippi Alluvial Plain and the Prairie Pothole Region 79-80\n(Oct. 1988) (noting that "isolated," phase 3 waters "are among the most important and also\n[the] most threatened ecosystems in the United States" because "[t]hey are prime nesting\ngrounds for many species of North American waterfowl ... " and provide "[u]p to 50 percent\nof the [D. S.] production of migratory waterfowl"). Nor does petitioner dispute that the\nparticular waters it seeks to fill are home to many important species of migratory birds,\nincluding the second-largest breeding colony of Great Blue Herons in northeastern Illinois,\nApp. to Pet. for Cert. 3a, and several species of waterfowl protected by international treaty\nand Illinois endangered species laws, Brief for Federal Respondents 7. 16\n15\n\nThe fact that petitioner can conceive of some people who may discharge fill for\nnoneconomic reasons does not weaken the legitimacy of the Corps\' jurisdictional claims.\nAs we observed in Perez v. United States, 402 U.S. 146 (1971), "[w]here the class of\nactivities is regulated and that class is within the reach of federal power, the courts have no\npower to excise, as trivial, individual instances of the class." Id., at 154 (internal quotation\nmarks omitted).\n16\n\nOther bird species using petitioner\'s site as habitat include the" \'Great Egret, Greenbacked Heron, Black-crowned Night Heron, Canada Goose, Wood Duck, Mallard, Greater\nYellowlegs, Belted Kingfisher, Northern Waterthrush, Louisiana Waterthrush, Swamp\nSparrow, and Red-winged Blackbird.\' " Brief for Petitioner 4, n.3.\n111\n\n\x0cIn addition to the intrinsic value of migratory birds, see Missouri v. Holland, 252 D. S. 416,\n435 (1920) (noting the importance of migratory birds as "protectors of our forests and our\ncrops" and as "a food supply"), it is undisputed that literally millions of people regularly\nparticipate in birdwatching and hunting and that those activities generate a host of\ncommercial activities of great value.17 The causal connection between the filling of wetlands\nand the decline of commercial activities associated with migratory birds is not "attenuated,"\nMorrison, 529 U.S., at 612; it is direct and concrete. Cf. Gibbs v. Babbitt, 214 F.3d 483,\n492-493 (CA4 2000) ("The relationship between red wolf takings and interstate commerce\nis quite direct-with no red wolves, there will be no red wolf related tourism ... ").\nFinally, the migratory bird rule does not blur the "distinction between what is truly national\nand what is truly local." Morrison, 529 U.S., at 617-618. Justice Holmes cogently observed\nin Missouri v. Holland that the protection of migratory birds is a textbook example of a\nnational problem. 252 U.S., at 435 ("It is not sufficient to rely upon the States [to protect\nmigratory birds]. The reliance is vain ... "). The destruction of aquatic migratory bird habitat,\nlike so many other environmental problems, is an action in which the benefits (e. g., a new\nlandfill) are disproportionately local, while many of the costs (e. g., fewer migratory birds)\nare widely dispersed and often borne by citizens living in other States. In such situations,\ndescribed by economists as involving "externalities," federal regulation is both appropriate\nand necessary. * * * Identifying the Corps\' jurisdiction by reference to waters that serve as\nhabitat for birds that migrate over state lines also satisfies this Court\'s expressed desire for\nsome "jurisdictional element" that limits federal activity to its proper scope. Morrison, 529\nU.S., at 612.\nThe power to regulate commerce among the several States necessarily and properly\nincludes the power to preserve the natural resources that generate such commerce. Cf.\nSporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 953 (1982) (holding water to be an\n"article of commerce"). Migratory birds, and the waters on which they rely, are such\nresources. Moreover, the protection of migratory birds is a well established federal\nresponsibility. As Justice Holmes noted in Missouri v. Holland, the federal interest in\nprotecting these birds is of "the first magnitude." 252 U.S., at 435. Because of their\ntransitory nature, they "can be protected only by national action." Ibid.\nWhether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a\n\n17\n\nIn 1984, the U. S. Congress Office of Technology Assessment found that, in 1980, 5.3\nmillion Americans hunted migratory birds, spending $638 million. * * * More than 100 million\nAmericans spent almost $14.8 billion in 1980 to watch and photograph fish and wildlife.\nIbid. Of 17.7 million birdwatchers, 14.3 million took trips in order to observe, feed, or\nphotograph waterfowl, and 9.5 million took trips specifically to view other water-associated\nbirds, such as herons like those residing at petitioner\'s site. * * *\n112\n\n\x0cquestion on which we have no voice. Whether the Federal Government has the power to\nrequire such permission, however, is a question that is easily answered. If, as it does, the\nCommerce Clause empowers Congress to regulate particular "activities causing air or\nwater pollution, or other environmental hazards that may have effects in more than one\nState," Hodel, 452 U.S., at 282, it also empowers Congress to control individual actions\nthat, in the aggregate, would have the same effect. Perez, 402 U.S., at 154; Wickard, 317\nU.S., at 127-128.18 There is no merit in petitioner\'s constitutional argument.\nBecause I would affirm the judgment of the Court of Appeals, I respectfully dissent.\n\nLEARN MORE\nAlthough we haven\xe2\x80\x99t covered the Commerce Clause in detail here, there is a very helpful CALI exercise,\nauthored by Professor Robin Craig, that examines the Commerce Clause and Federalism issues in the\ncontext of environmental law. If you are a law student at a CALI member school, you can access the lesson\nat: http://www.cali.org/lesson/1142\n\nD.\n\nRepercussions of SWANCC - Isolated Waters, Non-Navigable Tributaries\nand Their Adjacent Wetlands\n\nWhile it was clear that the Supreme Court invalidated the Corps\xe2\x80\x99 regulation of isolated\nwaters based on the \xe2\x80\x9cmigratory bird rule,\xe2\x80\x9d it was unclear whether the Court was placing\nfurther limits on the Clean Water Act jurisdiction over \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d As\nnoted above, the SWANCC court indicated that Court\xe2\x80\x99s decision to uphold the regulation of\nadjacent wetlands in Riverside Bayview was based on the \xe2\x80\x9csignificant nexus\xe2\x80\x9d between\nthose wetlands and other waters and the SWANCC Court indicated that the term\n\xe2\x80\x9cnavigable\xe2\x80\x9d in the Clean Water Act \xe2\x80\x9chas at least the import of showing us what Congress\nhad in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that\nwere or had been navigable in fact or which could reasonably be so made.\xe2\x80\x9d 531 U.S. at\n172. Furthermore, in response to arguments that the legislative history of the Clean Water\nAct demonstrated that Congress intended that \xe2\x80\x9cnavigable waters\xe2\x80\x9d be given \xe2\x80\x9cthe broadest\n18\n\nJUSTICE THOMAS is the only Member of the Court who has expressed disagreement\nwith the "aggregation principle." United States v. Lopez, 514 U.S.549, 600 (1995)\n(concurring opinion).\n113\n\n\x0cpossible constitutional interpretation\xe2\x80\x9d, the SWANCC Court stressed that the legislative\nhistory suggested that Congress only intended to exert its \xe2\x80\x9ccommerce power over\nnavigation.\xe2\x80\x9d Id. at 168, n.3.\nConsequently, it was unclear, after SWANCC, whether the Corps and EPA could continue\nto exercise jurisdiction over (1) isolated waters that have a sufficient connection to\ninterstate commerce, other than through the \xe2\x80\x9cmigratory bird rule\xe2\x80\x9d; and (2) non-navigable\ntributaries of traditionally navigable waters and wetlands adjacent to those non-navigable\ntributaries.\nDepending on how the decision was interpreted, the impact on regulated waters could have\nbeen significant. A report prepared for the Association of State Wetlands Managers after\nthe SWANCC decision suggested that if the Court\xe2\x80\x99s decision were interpreted to allow the\ngovernment to regulate only traditionally navigable waters and wetlands adjacent to those\nwaters, 80% of the nation\xe2\x80\x99s wetlands would be excluded from federal regulation under the\nClean Water Act. See Jon Kusler, State Regulation of Wetlands to Fill the Gap 6\n(Association of State Wetlands Managers, Inc., 2004). In that scenario, the major types of\nwetlands that would be unregulated included prairie potholes, wet meadows, river fringing\nwetlands along non-navigable rivers and streams, many forested wetlands, playas, and\nvernal pools. Id. The report suggested that up to 95% of the waters in Arizona, 66% of\nFlorida\xe2\x80\x99s wetlands and 90% of Wisconsin\xe2\x80\x99s wetlands could be outside of federal regulation,\ndepending on the interpretation of the SWANCC decision. If, on the other hand, the\nSWANCC decision were interpreted to allow the government to regulate traditionally\nnavigable waters, all of their tributaries, and wetlands adjacent to those waters and\ntributaries, only 40% of the nation\xe2\x80\x99s wetlands would be excluded from federal regulation. Id.\nat 7.\nAlthough States could, theoretically, have regulated the waters that would no longer be\nsubject to federal regulation after SWANCC, most States did not have such regulatory\nprograms in place. At the time of the SWANCC decision, thirty-two States did not have\nprograms to regulate isolated freshwater wetlands. Id. at 13. Prior to SWANCC, those\nStates primarily relied on the federal regulatory program and their ability to participate in the\npermitting program through the Clean Water Act Section 401 certification process\n(described in Chapter 6) to protect those waters. Id. A few States, including Indiana, Ohio,\nNorth Carolina and South Carolina, expanded their State programs to regulate isolated\nwetlands after SWANCC, but many did not. Id. at 13-14.\n1.\n\nRegulatory Response\n\nShortly after the Court\xe2\x80\x99s decision in SWANCC, the General Counsel of EPA and the Chief\nCounsel of the Corps issued a joint memorandum addressing the Court\xe2\x80\x99s ruling. In the\nguidance, the agencies adopted a narrow reading of the ruling. Although the agencies\nacknowledged that the decision invalidated jurisdiction over isolated waters based on the\n114\n\n\x0c\xe2\x80\x9cmigratory bird rule\xe2\x80\x9d, the guidance suggested that regulators could determine, on a caseby-case basis, that isolated waters could be regulated under the Clean Water Act if their\nuse, degradation, or destruction could affect interstate or foreign commerce and that nonnavigable isolated waters might be regulated if they had a \xe2\x80\x9csignificant nexus\xe2\x80\x9d to other\nwaters of the United States. Id. \xc2\xa7 5. It would be more difficult and time-consuming to\ndemonstrate the ties to interstate commerce on a case-by-case basis without relying on the\n\xe2\x80\x9cmigratory bird rule,\xe2\x80\x9d but the guidance suggested that such regulation was still appropriate\nafter the SWANCC ruling.\nThe guidance also addressed the agencies\xe2\x80\x99 authority to regulate tributaries of navigable\nwaters and wetlands adjacent to those tributaries. Specifically, the guidance provided that\n\xe2\x80\x9cthe holding, the facts, and the reasoning of United States v. Riverside Bayview Homes\ncontinue to provide authority for the EPA and the Corps to assert jurisdiction over ... all of\nthe traditional navigable waters, all interstate waters, all tributaries to navigable or interstate\nwaters, upstream to the highest reaches of the tributary systems, and over all wetlands\nadjacent to any and all of those waters.\xe2\x80\x9d Id.\nTwo years later, after a change in presidential administrations, the agencies updated their\nguidance. See 68 Fed. Reg. 1995 (Jan. 15, 2003). The 2003 guidance indicated that\n\xe2\x80\x9cgenerally speaking\xe2\x80\x9d the Corps would continue to assert jurisdiction over all tributaries,\nincluding non-navigable tributaries, of navigable waters, and to wetlands adjacent to those\ntributaries. 68 Fed. Reg. at 1996. Regarding non-navigable isolated intrastate waters, the\nguidance expressed skepticism that the agencies could assert jurisdiction over those\nwaters based on other ties to interstate commerce, but authorized regulators to continue to\ndo so on a case-by-case basis with approval from Headquarters. Id.\nIn January 2003, the Corps and EPA also began the process of developing a new rule to\nclarify the definition of \xe2\x80\x9cwaters of the United States\xe2\x80\x9d in light of the SWANCC decision by\nissuing an advance notice of proposed rulemaking. See 68 Fed. Reg. 1991 (Jan. 15, 2003).\nThe agencies received more than 130,000 comments on the notice and the comments\noverwhelmingly supported a narrow interpretation of SWANCC and broad federal\njurisdiction. See Jon Kusler, State Regulation of Wetlands to Fill the Gap 8 (Association of\nState Wetlands Managers, Inc. 2004). Forty-three States submitted comments and forty of\nthose States encouraged the agencies to retain broad federal jurisdiction over \xe2\x80\x9cwaters of\nthe United States.\xe2\x80\x9d Id. Many States were concerned that a broad reading of SWANCC\nwould make it difficult to protect wetlands in their States. Id. After more than 200 members\nof Congress signed a letter, in November 2003, asking the Corps and EPA not to issue new\nrules, EPA announced, in December 2003, that the agencies would not be moving forward\nwith new rules at that time. Id.\n\n115\n\n\x0c2.\n\nLegislative Response\n\nWhile the agencies were developing guidance to respond to SWANCC, Congress was also\nfocusing on the issue. In 2003, the Clean Water Authority Restoration Act was introduced in\nthe House and Senate. See S. 473, 108th Cong. 1st Sess. (2003); H.R. 962, 108th Cong., 1st\nSess. (2003). The legislation would restore an expansive definition of \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d to include \xe2\x80\x9call waters subject to the ebb and flow of the tide, the territorial seas, and\nall interstate and intrastate waters and their tributaries, including lakes, rivers, streams\n(including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes,\nwet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the\nfullest extent that these waters, or activities affecting these waters, are subject to the\nlegislative power of Congress under the Constitution.\xe2\x80\x9d S. 473, \xc2\xa7 4(3). The legislation did not\npass, but was re-introduced in the 109th Congress, see Clean Water Authority Restoration\nAct of 2005, S. 912, 109th Cong., 1st Sess. (2005); H.R. 1356, 109th Cong., 1st Sess. (2005)\nand 110th Congress, see Clean Water Restoration Act of 2007 in the 110th Congress, see\nH.R. 2421, 110th Cong., 1st Sess. (2007); S. 1870, 110th Cong., 1st Sess. (2007). Similar\nlegislation, with a slightly narrower definition of \xe2\x80\x9cwaters of the United States\xe2\x80\x9d was proposed\nin the 111th Congress, see Clean Water Restoration Act of 2009 - S. 787, 111th Cong. 1st.\nSess. (2009). Ultimately, however, none of those legislative proposals were successful.\n3.\n\nJudicial Response\n\nWhile the Executive and Legislative branches considered or debated appropriate\nresponses to the SWANCC decision, landowners brought many judicial challenges to\nfederal jurisdiction over non-navigable tributaries and wetlands adjacent to those\ntributaries. Most of the courts, including the federal appellate courts, that addressed the\nquestion concluded that the Clean Water Act authorized regulation of those waters. See\nBaccarat Fremont v. U.S. Army Corps of Engineers, 425 F.3d 1150 (9th Cir. 2005); United\nStates v. Rueth Development Co., 335 F.3d 598 (7th Cir. 2003); United States v. Deaton,\n332 F.3d 698 (4th Cir. 2003); Community Assn. For Restoration of Environment v. Henry\nBosma Dairy, 305 F.3d 943 (9th Cir. 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243\nF.3d 526 (9th Cir. 2001); but see In re Needham, 354 F.3d 340 (5th Cir. 2003). A 2004\nAssociation of Wetlands Managers report noted that 28 of the 31 federal court decisions\ninterpreting SWANCC at that time had interpreted the Clean Water Act broadly, either by\ninterpreting \xe2\x80\x9ctributary\xe2\x80\x9d broadly to include non-navigable tributaries, by adopting a broad\nconcept of \xe2\x80\x9cadjacency\xe2\x80\x9d or by adopting a broad concept of the significant nexus. See Jon\nKusler, State Regulation of Wetlands to Fill the Gap 8 (Association of State Wetlands\nManagers, Inc. 2004).\nIt was not long, however, before the Supreme Court again weighed in on the definition of\n\xe2\x80\x9cwaters of the United States.\xe2\x80\x9d Before reading the next case, it might be helpful to look a\nlittle more closely at sections of the Corps and EPA regulations on \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d that have not been described in detail above.\n116\n\n\x0cFirst, in determining jurisdiction over tributaries, the regulations include navigable and nonnavigable tributaries, as long as the tributaries have a perceptible \xe2\x80\x9cordinary high water\nmark\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 328.4(c). An \xe2\x80\x9cordinary high-water mark\xe2\x80\x9d is a \xe2\x80\x9cline on the shore\nestablished by the fluctuations of water and indicated by physical characteristics such as\nclear, natural line impressed on the bank, shelving, changes in the character of soil,\ndestruction of terrestrial vegetation, the presence of litter and debris, or other appropriate\nmeans that consider the characteristics of the surrounding areas.\xe2\x80\x9d 33 C.F.R. \xc2\xa7 328.3(e).\nConsequently, the federal regulations assert jurisdiction over a wide variety of intermittent\nand ephemeral streams, ditches, and other non-navigable tributaries of navigable waters.\nSecond, the regulations define \xe2\x80\x9cadjacent\xe2\x80\x9d in a manner that is subject to generous\ninterpretation. Specifically, \xe2\x80\x9cadjacent\xe2\x80\x9d means \xe2\x80\x9cbordering, contiguous, or neighboring\xe2\x80\x9d\n(emphasis added) and includes wetlands that are \xe2\x80\x9cseparated from other waters of the\nUnited States by man-made dikes or barriers, natural river berms, beach dunes and the\nlike.\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 328.3(c). Prior to the Rapanos case, some of the Corps\xe2\x80\x99 offices had\nconcluded that wetlands were \xe2\x80\x9cadjacent\xe2\x80\x9d to other bodies of water if they were hydrologically\nconnected to the waters \xe2\x80\x9cthrough directional sheet flow during storm events\xe2\x80\x9d or if they were\nwithin the 100 year floodplain of the waters. See General Accounting Office, Corps of\nEngineers Needs to Evaluate its District Office Practices in Determining Jurisdiction GAO\xe2\x80\x93\n04\xe2\x80\x93297, 16-18 (Feb. 2004).\nThe Supreme Court was faced with challenges to the government\xe2\x80\x99s regulation of nonnavigable tributaries of navigable waters and to regulation of wetlands adjacent to those\n\ntributaries in the following case, Rapanos v. United States. The case was actually the\nPhoto 24 By Famartin (Own work)\nhttp://commons.wikimedia.org/wiki/File%3AView_of_an_ephemeral_stream_along_the_Orange_Tr\nail_near_the_Assunpink_Creek_in_the_Van [CC-BY-SA-3.0]\n\n117\n\n\x0cconsolidation of two separate Clean Water Act lawsuits: (1) an enforcement action against\nJohn Rapanos for filling wetlands, to build a shopping center, without a Clean Water Act\npermit; and (2) a challenge by Keith and June Carabell to the denial of a Clean Water Act\npermit to fill wetlands for a housing development. In both cases, the federal government\nasserted jurisdiction over the wetlands at issue not because the wetlands were adjacent to\ntraditional navigable waters but because they were adjacent to non-navigable tributaries of\nnavigable waters. In addition, in the Carabell case, the wetlands were separated from the\nnon-navigable tributaries by a berm. Ultimately, the Supreme Court split 4-4-1 in deciding\nthe case, so the decision has continued to muddy the waters on the scope of Clean Water\nAct jurisdiction over \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d\n\nRAPANOS V. UNITED STATES\n547 U.S. 715 (2006)\nJustice Scalia announced the judgment\nof the Court, and delivered an opinion, in\nwhich The Chief Justice, Justice\nThomas, and Justice Alito join.\n\nResources for the Case\nOral argument audio (from Oyez project)\nEPA Administrative Order re: Rapanos property\nCarabell permit application and Corps denial\nCorps\xe2\x80\x99 EA and Public Interest Review - Carabell\nMaps of the properties - Carabell; Rapanos\nUnedited opinion\nGoogle Map of all the cases in the coursebook\n\nIn April 1989, petitioner John A. Rapanos\nbackfilled wetlands on a parcel of land in\nMichigan that he owned and sought to\ndevelop. This parcel included 54 acres of land with sometimes-saturated soil conditions.\nThe nearest body of navigable water was 11 to 20 miles away. 339 F.3d 447, 449 (CA6\n2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were\n\xe2\x80\x9cwaters of the United States,\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(7), that could not be filled without a permit.\nTwelve years of criminal and civil litigation ensued.\nThe burden of federal regulation on those who would deposit fill material in locations\ndenominated \xe2\x80\x9cwaters of the United States\xe2\x80\x9d is not trivial. In deciding whether to grant or\ndeny a permit, the U.S. Army Corps of Engineers (Corps) exercises the discretion of an\nenlightened despot, relying on such factors as \xe2\x80\x9ceconomics,\xe2\x80\x9d \xe2\x80\x9caesthetics,\xe2\x80\x9d \xe2\x80\x9crecreation,\xe2\x80\x9d and\n\xe2\x80\x9cin general, the needs and welfare of the people,\xe2\x80\x9d 33 C.F.R. \xc2\xa7 320.4(a) (2004). * * * The\naverage applicant for an individual permit spends 788 days and $271,596 in completing the\nprocess, and the average applicant for a nationwide permit spends 313 days and\n$28,915\xe2\x80\x94not counting costs of mitigation or design changes. * * * \xe2\x80\x9c[O]ver $1.7 billion is\nspent each year by the private and public sectors obtaining wetlands permits.\xe2\x80\x9d Id., at 81.\nThese costs cannot be avoided, because the Clean Water Act \xe2\x80\x9cimpose[s] criminal liability,\xe2\x80\x9d\nas well as steep civil fines, \xe2\x80\x9con a broad range of ordinary industrial and commercial\nactivities.\xe2\x80\x9d Hanousek v. United States, 528 U.S. 1102, 1103 (2000) (Thomas, J., dissenting\nfrom denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr.\n118\n\n\x0cRapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and\ncivil fines. See United States v. Rapanos, 235 F.3d 256, 260 (CA6 2000).\nThe enforcement proceedings against Mr. Rapanos are a small part of the immense\nexpansion of federal regulation of land use that has occurred under the Clean Water Act\xe2\x80\x94\nwithout any change in the governing statute\xe2\x80\x94during the past five Presidential\nadministrations. In the last three decades, the Corps and the Environmental Protection\nAgency (EPA) have interpreted their jurisdiction over \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d to\ncover 270-to-300 million acres of swampy lands in the United States\xe2\x80\x94including half of\nAlaska and an area the size of California in the lower 48 States. And that was just the\nbeginning. The Corps has also asserted jurisdiction over virtually any parcel of land\ncontaining a channel or conduit\xe2\x80\x94whether man-made or natural, broad or narrow,\npermanent or ephemeral\xe2\x80\x94through which rainwater or drainage may occasionally or\nintermittently flow. On this view, the federally regulated \xe2\x80\x9cwaters of the United States\xe2\x80\x9d\ninclude storm drains, roadside ditches, ripples of sand in the desert that may contain water\nonce a year, and lands that are covered by floodwaters once every 100 years. Because\nthey include the land containing storm sewers and desert washes, the statutory \xe2\x80\x9cwaters of\nthe United States\xe2\x80\x9d engulf entire cities and immense arid wastelands. In fact, the entire land\narea of the United States lies in some drainage basin, and an endless network of visible\nchannels furrows the entire surface, containing water ephemerally wherever the rain falls.\nAny plot of land containing such a channel may potentially be regulated as a \xe2\x80\x9cwater of the\nUnited States.\xe2\x80\x9d\n***\nII\nIn these consolidated cases, we consider whether four Michigan wetlands, which lie near\nditches or man-made drains that eventually empty into traditional navigable waters,\nconstitute \xe2\x80\x9cwaters of the United States\xe2\x80\x9d within the meaning of the Act. Petitioners in No. 04\xe2\x80\x93\n1034, the Rapanos and their affiliated businesses, deposited fill material without a permit\ninto wetlands on three sites near Midland, Michigan: the \xe2\x80\x9cSalzburg site,\xe2\x80\x9d the \xe2\x80\x9cHines Road\nsite,\xe2\x80\x9d and the \xe2\x80\x9cPine River site.\xe2\x80\x9d The wetlands at the Salzburg site are connected to a manmade drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which\nempties into Saginaw Bay and Lake Huron. * * * The wetlands at the Hines Road site are\nconnected to something called the \xe2\x80\x9cRose Drain,\xe2\x80\x9d which has a surface connection to the\nTittabawassee River. * * * And the wetlands at the Pine River site have a surface\nconnection to the Pine River, which flows into Lake Huron. * * * It is not clear whether the\nconnections between these wetlands and the nearby drains and ditches are continuous or\nintermittent, or whether the nearby drains and ditches contain continuous or merely\noccasional flows of water.\nThe United States brought civil enforcement proceedings against the Rapanos petitioners.\n119\n\n\x0cThe District Court found that the three described wetlands were \xe2\x80\x9cwithin federal jurisdiction\xe2\x80\x9d\nbecause they were \xe2\x80\x9cadjacent to other waters of the United States,\xe2\x80\x9d and held petitioners\nliable for violations of the CWA at those sites. * * * On appeal, the United States Court of\nAppeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the\nwetlands at all three sites because \xe2\x80\x9cthere were hydrological connections between all three\nsites and corresponding adjacent tributaries of navigable waters.\xe2\x80\x9d * * *\nPetitioners in No. 04\xe2\x80\x931384, the Carabells, were denied a permit to deposit fill material in a\nwetland located on a triangular parcel of land about one mile from Lake St. Clair. A manmade drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide\nman-made berm. The berm is largely or entirely impermeable to water and blocks drainage\nfrom the wetland, though it may permit occasional overflow to the ditch. The ditch empties\ninto another ditch or a drain, which connects to Auvase Creek, which empties into Lake St.\nClair. * * *\nAfter exhausting administrative appeals, the Carabell petitioners filed suit in the District\nCourt, challenging the exercise of federal regulatory jurisdiction over their site. The District\nCourt ruled that there was federal jurisdiction because the wetland \xe2\x80\x9cis adjacent to\nneighboring tributaries of navigable waters and has a significant nexus to \xe2\x80\x98waters of the\nUnited States.\xe2\x80\x99 \xe2\x80\x9d * * * Again the Sixth Circuit affirmed, holding that the Carabell wetland was\n\xe2\x80\x9cadjacent\xe2\x80\x9d to navigable waters. 391 F.3d 704, 708 (2004) (Carabell).\nWe granted certiorari and consolidated the cases, * * * to decide whether these wetlands\nconstitute \xe2\x80\x9cwaters of the United States\xe2\x80\x9d under the Act, and if so, whether the Act is\nconstitutional.\nIII\nThe Rapanos petitioners contend that the terms \xe2\x80\x9cnavigable waters\xe2\x80\x9d and \xe2\x80\x9cwaters of the\nUnited States\xe2\x80\x9d in the Act must be limited to the traditional definition of The Daniel Ball,\nwhich required that the \xe2\x80\x9cwaters\xe2\x80\x9d be navigable in fact, or susceptible of being rendered so.\nSee 10 Wall., at 563. But this definition cannot be applied wholesale to the CWA. The Act\nuses the phrase \xe2\x80\x9cnavigable waters\xe2\x80\x9d as a defined term, and the definition is simply \xe2\x80\x9cthe\nwaters of the United States.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(7). Moreover, the Act provides, in certain\ncircumstances, for the substitution of state for federal jurisdiction over \xe2\x80\x9cnavigable waters \xe2\x80\xa6\nother than those waters which are presently used, or are susceptible to use in their natural\ncondition or by reasonable improvement as a means to transport interstate or foreign\ncommerce \xe2\x80\xa6 including wetlands adjacent thereto.\xe2\x80\x9d \xc2\xa7 1344(g)(1) (emphasis added). This\nprovision shows that the Act\xe2\x80\x99s term \xe2\x80\x9cnavigable waters\xe2\x80\x9d includes something more than\ntraditional navigable waters. We have twice stated that the meaning of \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nin the Act is broader than the traditional understanding of that term, SWANCC, 531 U.S., at\n167; Riverside Bayview, 474 U.S., at 133. * * * We have also emphasized, however, that\nthe qualifier \xe2\x80\x9cnavigable\xe2\x80\x9d is not devoid of significance, SWANCC, supra, at 172.\n120\n\n\x0cWe need not decide the precise extent to which the qualifiers \xe2\x80\x9cnavigable\xe2\x80\x9d and \xe2\x80\x9cof the United\nStates\xe2\x80\x9d restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA\nauthorizes federal jurisdiction only over \xe2\x80\x9cwaters.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(7). The only natural\ndefinition of the term \xe2\x80\x9cwaters,\xe2\x80\x9d our prior and subsequent judicial constructions of it, clear\nevidence from other provisions of the statute, and this Court\xe2\x80\x99s canons of construction all\nconfirm that \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d in \xc2\xa7 1362(7) cannot bear the expansive\nmeaning that the Corps would give it.\nThe Corps\xe2\x80\x99 expansive approach might be arguable if the CWA defined \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nas \xe2\x80\x9cwater of the United States.\xe2\x80\x9d But \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d is something else. The\nuse of the definite article (\xe2\x80\x9cthe\xe2\x80\x9d) and the plural number (\xe2\x80\x9cwaters\xe2\x80\x9d) show plainly that \xc2\xa7\n1362(7) does not refer to water in general. In this form, \xe2\x80\x9cthe waters\xe2\x80\x9d refers more narrowly to\nwater \xe2\x80\x9c[a]s found in streams and bodies forming geographical features such as oceans,\nrivers, [and] lakes,\xe2\x80\x9d or \xe2\x80\x9cthe flowing or moving masses, as of waves or floods, making up\nsuch streams or bodies.\xe2\x80\x9d Webster\xe2\x80\x99s New International Dictionary 2882 (2d ed. 1954)\n(hereinafter Webster\xe2\x80\x99s Second). * * * On this definition, \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d\ninclude only relatively permanent, standing or flowing bodies of water.5 The definition refers\nto water as found in \xe2\x80\x9cstreams,\xe2\x80\x9d \xe2\x80\x9coceans,\xe2\x80\x9d \xe2\x80\x9crivers,\xe2\x80\x9d \xe2\x80\x9clakes,\xe2\x80\x9d and \xe2\x80\x9cbodies\xe2\x80\x9d of water \xe2\x80\x9cforming\ngeographical features.\xe2\x80\x9d Ibid. All of these terms connote continuously present, fixed bodies\nof water, as opposed to ordinarily dry channels through which water occasionally or\nintermittently flows. Even the least substantial of the definition\xe2\x80\x99s terms, namely \xe2\x80\x9cstreams,\xe2\x80\x9d\nconnotes a continuous flow of water in a permanent channel\xe2\x80\x94especially when used in\ncompany with other terms such as \xe2\x80\x9crivers,\xe2\x80\x9d \xe2\x80\x9clakes,\xe2\x80\x9d and \xe2\x80\x9coceans.\xe2\x80\x9d 6 None of these terms\n5\n\nBy describing \xe2\x80\x9cwaters\xe2\x80\x9d as \xe2\x80\x9crelatively permanent,\xe2\x80\x9d we do not necessarily exclude streams,\nrivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also\ndo not necessarily exclude seasonal rivers, which contain continuous flow during some\nmonths of the year but no flow during dry months\xe2\x80\x94such as the 290-day, continuously\nflowing stream postulated by Justice Stevens\xe2\x80\x99 dissent (hereinafter the dissent), post, at 15.\nCommon sense and common usage distinguish between a wash and seasonal river.\nThough scientifically precise distinctions between \xe2\x80\x9cperennial\xe2\x80\x9d and \xe2\x80\x9cintermittent\xe2\x80\x9d flows are no\ndoubt available, * * * we have no occasion in this litigation to decide exactly when the\ndrying-up of a stream bed is continuous and frequent enough to disqualify the channel as a\n\xe2\x80\x9cwate[r] of the United States.\xe2\x80\x9d It suffices for present purposes that channels containing\npermanent flow are plainly within the definition, and that the dissent\xe2\x80\x99s \xe2\x80\x9cintermittent\xe2\x80\x9d and\n\xe2\x80\x9cephemeral\xe2\x80\x9d streams, post, at 16 (opinion of Stevens, J.)\xe2\x80\x94that is, streams whose flow is\n\xe2\x80\x9c[c]oming and going at intervals \xe2\x80\xa6 [b]roken, fitful,\xe2\x80\x9d Webster\xe2\x80\x99s Second 1296, or \xe2\x80\x9cexisting\nonly, or no longer than, a day; diurnal \xe2\x80\xa6 short-lived,\xe2\x80\x9d id., at 857\xe2\x80\x94are not.\n6\n\nThe principal definition of \xe2\x80\x9cstream\xe2\x80\x9d likewise includes reference to such permanent,\ngeographically fixed bodies of water: \xe2\x80\x9c[a] current or course of water or other fluid, flowing on\nthe earth, as a river, brook, etc.\xe2\x80\x9d Id., at 2493 (emphasis added). The other definitions of\n121\n\n\x0cencompasses transitory puddles or ephemeral flows of water.\nThe restriction of \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d to exclude channels containing merely\nintermittent or ephemeral flow also accords with the commonsense understanding of the\nterm. In applying the definition to \xe2\x80\x9cephemeral streams,\xe2\x80\x9d \xe2\x80\x9cwet meadows,\xe2\x80\x9d storm sewers and\nculverts, \xe2\x80\x9cdirectional sheet flow during storm events,\xe2\x80\x9d drain tiles, man-made drainage\nditches, and dry arroyos in the middle of the desert, the Corps has stretched the term\n\xe2\x80\x9cwaters of the United States\xe2\x80\x9d beyond parody. The plain language of the statute simply does\nnot authorize this \xe2\x80\x9cLand Is Waters\xe2\x80\x9d approach to federal jurisdiction.\nIn addition, the Act\xe2\x80\x99s use of the traditional phrase \xe2\x80\x9cnavigable waters\xe2\x80\x9d (the defined term)\nfurther confirms that it confers jurisdiction only over relatively permanent bodies of water.\nThe Act adopted that traditional term from its predecessor statutes. See SWANCC, 531\nU.S., at 180 (Stevens, J., dissenting). On the traditional understanding, \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nincluded only discrete bodies of water. For example, in The Daniel Ball, we used the terms\n\xe2\x80\x9cwaters\xe2\x80\x9d and \xe2\x80\x9crivers\xe2\x80\x9d interchangeably. 10 Wall., at 563. And in Appalachian Electric, we\nconsistently referred to the \xe2\x80\x9cnavigable waters\xe2\x80\x9d as \xe2\x80\x9cwaterways.\xe2\x80\x9d 311 U. S., at 407\xe2\x80\x93409.\nPlainly, because such \xe2\x80\x9cwaters\xe2\x80\x9d had to be navigable in fact or susceptible of being rendered\nso, the term did not include ephemeral flows. * * *\nMoreover, only the foregoing definition of \xe2\x80\x9cwaters\xe2\x80\x9d is consistent with the CWA\xe2\x80\x99s stated\n\xe2\x80\x9cpolicy of Congress to recognize, preserve, and protect the primary responsibilities and\nrights of the States to prevent, reduce, and eliminate pollution, [and] to plan the\ndevelopment and use (including restoration, preservation, and enhancement) of land and\nwater resources \xe2\x80\xa6 .\xe2\x80\x9d \xc2\xa7 1251(b). This statement of policy was included in the Act as\nenacted in 1972, see 86 Stat. 816, prior to the addition of the optional state administration\n\xe2\x80\x9cstream\xe2\x80\x9d repeatedly emphasize the requirement of continuous flow: \xe2\x80\x9c[a] steady flow, as of\nwater, air, gas, or the like\xe2\x80\x9d; \xe2\x80\x9c[a]nything issuing or moving with continued succession of\nparts\xe2\x80\x9d; \xe2\x80\x9c[a] continued current or course; current; drift.\xe2\x80\x9d Ibid. (emphases added). The\ndefinition of the verb form of \xe2\x80\x9cstream\xe2\x80\x9d contains a similar emphasis on continuity: \xe2\x80\x9c[t]o issue\nor flow in a stream; to issue freely or move in a continuous flow or course.\xe2\x80\x9d Ibid. (emphasis\nadded). On these definitions, therefore, the Corps\xe2\x80\x99 phrases \xe2\x80\x9cintermittent streams,\xe2\x80\x9d 33\nC.F.R. \xc2\xa7 328.3(a)(3) (2004), and \xe2\x80\x9cephemeral streams,\xe2\x80\x9d 65 Fed. Reg. 12823 (2000), are\xe2\x80\x94\nlike Senator Bentsen\xe2\x80\x99s \xe2\x80\x9c \xe2\x80\x98 flowing gullies,\xe2\x80\x99 \xe2\x80\x9d post, at 16, n.11 (opinion of Stevens, J.)\xe2\x80\x94useful\noxymora. Properly speaking, such entities constitute extant \xe2\x80\x9cstreams\xe2\x80\x9d only while they are\n\xe2\x80\x9ccontinuous[ly] flow[ing]\xe2\x80\x9d; and the usually dry channels that contain them are never\n\xe2\x80\x9cstreams.\xe2\x80\x9d Justice Kennedy apparently concedes that \xe2\x80\x9can intermittent flow can constitute a\nstream\xe2\x80\x9d only \xe2\x80\x9cwhile it is flowing,\xe2\x80\x9d post, at 13 (emphasis added)\xe2\x80\x94which would mean that the\nchannel is a \xe2\x80\x9cwater\xe2\x80\x9d covered by the Act only during those times when water flow actually\noccurs. But no one contends that federal jurisdiction appears and evaporates along with the\nwater in such regularly dry channels.\n122\n\n\x0cprogram in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly referred to\nsomething beyond the subsequently added state administration program of 33 U.S.C.\n\xc2\xa7 1344(g)\xe2\x80\x93(l). But the expansive theory advanced by the Corps, rather than \xe2\x80\x9cpreserv[ing]\nthe primary rights and responsibilities of the States,\xe2\x80\x9d would have brought virtually all\n\xe2\x80\x9cplan[ning of] the development and use . . . of land and water resources\xe2\x80\x9d by the States\nunder federal control. It is therefore an unlikely reading of the phrase \xe2\x80\x9cthe waters of the\nUnited States.\xe2\x80\x9d * * *\nEven if the phrase \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d were ambiguous as applied to\nintermittent flows, our own canons of construction would establish that the Corps\xe2\x80\x99\ninterpretation of the statute is impermissible. As we noted in SWANCC, the Government\xe2\x80\x99s\nexpansive interpretation would \xe2\x80\x9cresult in a significant impingement of the States\xe2\x80\x99 traditional\nand primary power over land and water use.\xe2\x80\x9d 531 U.S., at 174. Regulation of land use, as\nthrough the issuance of the development permits sought by petitioners in both of these\ncases, is a quintessential state and local power. See FERC v. Mississippi, 456 U.S. 742,\n768, n.30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 44\n(1994). The extensive federal jurisdiction urged by the Government would authorize the\nCorps to function as a de facto regulator of immense stretches of intrastate land\xe2\x80\x94an\nauthority the agency has shown its willingness to exercise with the scope of discretion that\nwould befit a local zoning board. See 33 C.F.R. \xc2\xa7 320.4(a)(1) (2004). We ordinarily expect\na \xe2\x80\x9cclear and manifest\xe2\x80\x9d statement from Congress to authorize an unprecedented intrusion\ninto traditional state authority. See BFP v. Resolution Trust Corporation, 511 U.S. 531, 544\n(1994). The phrase \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d hardly qualifies.\nLikewise, just as we noted in SWANCC, the Corps\xe2\x80\x99 interpretation stretches the outer limits\nof Congress\xe2\x80\x99s commerce power and raises difficult questions about the ultimate scope of\nthat power. See 531 U.S., at 173. (In developing the current regulations, the Corps\nconsciously sought to extend its authority to the farthest reaches of the commerce power.\nSee 42 Fed. Reg. 37127 (1977).) Even if the term \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d were\nambiguous as applied to channels that sometimes host ephemeral flows of water (which it\nis not), we would expect a clearer statement from Congress to authorize an agency theory\nof jurisdiction that presses the envelope of constitutional validity. See Edward J. DeBartolo\nCorp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S.568, 575 (1988).\n***\nIn sum, on its only plausible interpretation, the phrase \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d\nincludes only those relatively permanent, standing or continuously flowing bodies of water\n\xe2\x80\x9cforming geographic features\xe2\x80\x9d that are described in ordinary parlance as \xe2\x80\x9cstreams[,] \xe2\x80\xa6\noceans, rivers, [and] lakes.\xe2\x80\x9d See Webster\xe2\x80\x99s Second 2882. The phrase does not include\nchannels through which water flows intermittently or ephemerally, or channels that\nperiodically provide drainage for rainfall. The Corps\xe2\x80\x99 expansive interpretation of the \xe2\x80\x9cthe\nwaters of the United States\xe2\x80\x9d is thus not \xe2\x80\x9cbased on a permissible construction of the statute.\xe2\x80\x9d\nChevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).\n123\n\n\x0cIV\nIn Carabell, the Sixth Circuit held that the nearby ditch constituted a \xe2\x80\x9ctributary\xe2\x80\x9d and thus a\n\xe2\x80\x9cwater of the United States\xe2\x80\x9d under 33 C.F.R. \xc2\xa7 328.3(a)(5) (2004). See 391 F.3d, at 708\xe2\x80\x93\n709. Likewise in Rapanos, the Sixth Circuit held that the nearby ditches were \xe2\x80\x9ctributaries\xe2\x80\x9d\nunder \xc2\xa7 328(a)(5). 376 F.3d, at 643. But Rapanos II also stated that, even if the ditches\nwere not \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d the wetlands were \xe2\x80\x9cadjacent\xe2\x80\x9d to remote traditional\nnavigable waters in virtue of the wetlands\xe2\x80\x99 \xe2\x80\x9chydrological connection\xe2\x80\x9d to them. See id., at\n639\xe2\x80\x93640. This statement reflects the practice of the Corps\xe2\x80\x99 district offices, which may\n\xe2\x80\x9cassert jurisdiction over a wetland without regulating the ditch connecting it to a water of the\nUnited States.\xe2\x80\x9d * * * We therefore address in this Part whether a wetland may be\nconsidered \xe2\x80\x9cadjacent to\xe2\x80\x9d remote \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d because of a mere\nhydrologic connection to them.\nIn Riverside Bayview, we noted the textual difficulty in including \xe2\x80\x9cwetlands\xe2\x80\x9d as a subset of\n\xe2\x80\x9cwaters\xe2\x80\x9d: \xe2\x80\x9cOn a purely linguistic level, it may appear unreasonable to classify \xe2\x80\x98lands,\xe2\x80\x99 wet or\notherwise, as \xe2\x80\x98waters.\xe2\x80\x99 \xe2\x80\x9d 474 U.S., at 132. We acknowledged, however, that there was an\ninherent ambiguity in drawing the boundaries of any \xe2\x80\x9cwaters\xe2\x80\x9d:\n\xe2\x80\x9c[T]he Corps must necessarily choose some point at which water ends and land\nbegins. Our common experience tells us that this is often no easy task: the transition\nfrom water to solid ground is not necessarily or even typically an abrupt one. Rather,\nbetween open waters and dry land may lie shallows, marshes, mudflats, swamps,\nbogs\xe2\x80\x94in short, a huge array of areas that are not wholly aquatic but nevertheless\nfall far short of being dry land. Where on this continuum to find the limit of \xe2\x80\x98waters\xe2\x80\x99 is\nfar from obvious.\xe2\x80\x9d Ibid.\nBecause of this inherent ambiguity, we deferred to the agency\xe2\x80\x99s inclusion of wetlands\n\xe2\x80\x9cactually abut[ting]\xe2\x80\x9d traditional navigable waters: \xe2\x80\x9cFaced with such a problem of defining the\nbounds of its regulatory authority,\xe2\x80\x9d we held, the agency could reasonably conclude that a\nwetland that \xe2\x80\x9cadjoin[ed]\xe2\x80\x9d waters of the United States is itself a part of those waters. Id., at\n132, 135, and n.9. The difficulty of delineating the boundary between water and land was\ncentral to our reasoning in the case: \xe2\x80\x9cIn view of the breadth of federal regulatory authority\ncontemplated by the Act itself and the inherent difficulties of defining precise bounds to\nregulable waters, the Corps\xe2\x80\x99 ecological judgment about the relationship between waters\nand their adjacent wetlands provides an adequate basis for a legal judgment that adjacent\nwetlands may be defined as waters under the Act.\xe2\x80\x9d Id., at 134 (emphasis added).10\n10\n\nSince the wetlands at issue in Riverside Bayview actually abutted waters of the United\nStates, the case could not possibly have held that merely \xe2\x80\x9cneighboring\xe2\x80\x9d wetlands came\nwithin the Corps\xe2\x80\x99 jurisdiction. Obiter approval of that proposition might be inferred, however,\nfrom the opinion\xe2\x80\x99s quotation without comment of a statement by the Corps describing\ncovered \xe2\x80\x9cadjacent\xe2\x80\x9d wetlands as those \xe2\x80\x9c \xe2\x80\x98that form the border of or are in reasonable\n124\n\n\x0cWhen we characterized the holding of Riverside Bayview in SWANCC, we referred to the\nclose connection between waters and the wetlands that they gradually blend into: \xe2\x80\x9cIt was\nthe significant nexus between the wetlands and \xe2\x80\x98navigable waters\xe2\x80\x99 that informed our\nreading of the CWA in Riverside Bayview Homes.\xe2\x80\x9d 531 U.S., at 167 (emphasis added). In\nparticular, SWANCC rejected the notion that the ecological considerations upon which the\nCorps relied in Riverside Bayview\xe2\x80\x94and upon which the dissent repeatedly relies today,\nsee post, at 10\xe2\x80\x9311, 12, 13\xe2\x80\x9314, 15, 18\xe2\x80\x9319, 21\xe2\x80\x9322, 24\xe2\x80\x9325\xe2\x80\x94provided an independent basis\nfor including entities like \xe2\x80\x9cwetlands\xe2\x80\x9d (or \xe2\x80\x9cephemeral streams\xe2\x80\x9d) within the phrase \xe2\x80\x9cthe waters\nof the United States.\xe2\x80\x9d SWANCC found such ecological considerations irrelevant to the\nquestion whether physically isolated waters come within the Corps\xe2\x80\x99 jurisdiction. It thus\nconfirmed that Riverside Bayview rested upon the inherent ambiguity in defining where\nwater ends and abutting (\xe2\x80\x9cadjacent\xe2\x80\x9d) wetlands begin, permitting the Corps\xe2\x80\x99 reliance on\necological considerations only to resolve that ambiguity in favor of treating all abutting\nwetlands as waters. Isolated ponds were not \xe2\x80\x9cwaters of the United States\xe2\x80\x9d in their own right,\nsee 531 U.S., at 167, 171, and presented no boundary-drawing problem that would have\njustified the invocation of ecological factors to treat them as such.\nTherefore, only those wetlands with a continuous surface connection to bodies that are\n\xe2\x80\x9cwaters of the United States\xe2\x80\x9d in their own right, so that there is no clear demarcation\nbetween \xe2\x80\x9cwaters\xe2\x80\x9d and wetlands, are \xe2\x80\x9cadjacent to\xe2\x80\x9d such waters and covered by the Act.\nWetlands with only an intermittent, physically remote hydrologic connection to \xe2\x80\x9cwaters of\nthe United States\xe2\x80\x9d do not implicate the boundary-drawing problem of Riverside Bayview,\nand thus lack the necessary connection to covered waters that we described as a\n\xe2\x80\x9csignificant nexus\xe2\x80\x9d in SWANCC. 531 U.S., at 167. Thus, establishing that wetlands such as\nthose at the Rapanos and Carabell sites are covered by the Act requires two findings: First,\nthat the adjacent channel contains a \xe2\x80\x9cwate[r] of the United States,\xe2\x80\x9d (i.e., a relatively\npermanent body of water connected to traditional interstate navigable waters); and second,\nthat the wetland has a continuous surface connection with that water, making it difficult to\nproximity to other waters of the United States.\xe2\x80\x99 \xe2\x80\x9d 474 U.S., at 134 (quoting 42 Fed. Reg.\n37128 (1977); emphasis added). The opinion immediately reiterated, however, that\nadjacent wetlands could be regarded as \xe2\x80\x9cthe waters of the United States\xe2\x80\x9d in view of \xe2\x80\x9cthe\ninherent difficulties of defining precise bounds to regulable waters,\xe2\x80\x9d 474 U.S., at 134\xe2\x80\x94a\nrationale that would have no application to physically separated \xe2\x80\x9cneighboring\xe2\x80\x9d wetlands.\nGiven that the wetlands at issue in Riverside Bayview themselves \xe2\x80\x9cactually abut[ted] on a\nnavigable waterway,\xe2\x80\x9d id., at 135; given that our opinion recognized that unconnected\nwetlands could not naturally be characterized as \xe2\x80\x9c \xe2\x80\x98waters\xe2\x80\x99 \xe2\x80\x9d at all, id., at 132; and given the\nrepeated reference to the difficulty of determining where waters end and wetlands begin;\nthe most natural reading of the opinion is that a wetlands\xe2\x80\x99 mere \xe2\x80\x9creasonable proximity\xe2\x80\x9d to\nwaters of the United States is not enough to confer Corps jurisdiction. In any event, as\ndiscussed in our immediately following text, any possible ambiguity has been eliminated by\nSWANCC, 531 U.S. 159 (2001).\n125\n\n\x0cdetermine where the \xe2\x80\x9cwater\xe2\x80\x9d ends and the \xe2\x80\x9cwetland\xe2\x80\x9d begins.\n***\nVIII\nBecause the Sixth Circuit applied the wrong standard to determine if these wetlands are\ncovered \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d and because of the paucity of the record in both of\nthese cases, the lower courts should determine, in the first instance, whether the ditches or\ndrains near each wetland are \xe2\x80\x9cwaters\xe2\x80\x9d in the ordinary sense of containing a relatively\npermanent flow; and (if they are) whether the wetlands in question are \xe2\x80\x9cadjacent\xe2\x80\x9d to these\n\xe2\x80\x9cwaters\xe2\x80\x9d in the sense of possessing a continuous surface connection that creates the\nboundary-drawing problem we addressed in Riverside Bayview.\nWe vacate the judgments of the Sixth Circuit in both No. 04\xe2\x80\x931034 and No. 04\xe2\x80\x931384, and\nremand both cases for further proceedings.\n***\nJustice Kennedy, concurring in the judgment.\nThese consolidated cases require the Court to decide whether the term \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nin the Clean Water Act extends to wetlands that do not contain and are not adjacent to\nwaters that are navigable in fact. In Solid Waste Agency of Northern Cook Cty. v. Army\nCorps of Engineers, 531 U.S. 159 (2001) (SWANCC), the Court held, under the\ncircumstances presented there, that to constitute \xe2\x80\x9c \xe2\x80\x98navigable waters\xe2\x80\x99 \xe2\x80\x9d under the Act, a\nwater or wetland must possess a \xe2\x80\x9csignificant nexus\xe2\x80\x9d to waters that are or were navigable in\nfact or that could reasonably be so made. Id., at 167, 172. In the instant cases neither the\nplurality opinion nor the dissent by Justice Stevens chooses to apply this test; and though\nthe Court of Appeals recognized the test\xe2\x80\x99s applicability, it did not consider all the factors\nnecessary to determine whether the lands in question had, or did not have, the requisite\nnexus. In my view the cases ought to be remanded to the Court of Appeals for proper\nconsideration of the nexus requirement.\n***\nRiverside Bayview and SWANCC establish the framework for the inquiry in the cases now\nbefore the Court: Do the Corps\xe2\x80\x99 regulations, as applied to the wetlands in Carabell and the\nthree wetlands parcels in Rapanos, constitute a reasonable interpretation of \xe2\x80\x9cnavigable\nwaters\xe2\x80\x9d as in Riverside Bayview or an invalid construction as in SWANCC? Taken together\nthese cases establish that in some instances, as exemplified by Riverside Bayview, the\nconnection between a nonnavigable water or wetland and a navigable water may be so\nclose, or potentially so close, that the Corps may deem the water or wetland a \xe2\x80\x9cnavigable\n126\n\n\x0cwater\xe2\x80\x9d under the Act. In other instances, as exemplified by SWANCC, there may be little or\nno connection. Absent a significant nexus, jurisdiction under the Act is lacking. Because\nneither the plurality nor the dissent addresses the nexus requirement, this separate opinion,\nin my respectful view, is necessary.\nA\nThe plurality\xe2\x80\x99s opinion begins from a correct premise. As the plurality points out, and as\nRiverside Bayview holds, in enacting the Clean Water Act Congress intended to regulate at\nleast some waters that are not navigable in the traditional sense. Ante, at 12; Riverside\nBayview, 474 U.S., at 133; see also SWANCC, supra, at 167. This conclusion is supported\nby \xe2\x80\x9cthe evident breadth of congressional concern for protection of water quality and aquatic\necosystems.\xe2\x80\x9d Riverside Bayview, supra, at 133; see also Milwaukee v. Illinois, 451 U.S.\n304, 318 (1981) (describing the Act as \xe2\x80\x9can all-encompassing program of water pollution\nregulation\xe2\x80\x9d). It is further compelled by statutory text, for the text is explicit in extending the\ncoverage of the Act to some nonnavigable waters.\n***\nFrom this reasonable beginning the plurality proceeds to impose two limitations on the Act;\nbut these limitations, it is here submitted, are without support in the language and purposes\nof the Act or in our cases interpreting it. First, because the dictionary defines \xe2\x80\x9cwaters\xe2\x80\x9d to\nmean \xe2\x80\x9cwater \xe2\x80\x98[a]s found in streams and bodies forming geographical features such as\noceans, rivers, [and] lakes,\xe2\x80\x99 or \xe2\x80\x98the flowing or moving masses, as of waves or floods,\nmaking up such streams or bodies,\xe2\x80\x9d ante, at 13 (quoting Webster\xe2\x80\x99s New International\nDictionary 2882 (2d ed. 1954) (hereinafter Webster\xe2\x80\x99s Second)), the plurality would conclude\nthat the phrase \xe2\x80\x9cnavigable waters\xe2\x80\x9d permits Corps and EPA jurisdiction only over \xe2\x80\x9crelatively\npermanent, standing or flowing bodies of water,\xe2\x80\x9d ante, at 13\xe2\x80\x9314\xe2\x80\x94a category that in the\nplurality\xe2\x80\x99s view includes \xe2\x80\x9cseasonal\xe2\x80\x9d rivers, that is, rivers that carry water continuously except\nduring \xe2\x80\x9cdry months,\xe2\x80\x9d but not intermittent or ephemeral streams, ante, at 13\xe2\x80\x9315, and n.5.\nSecond, the plurality asserts that wetlands fall within the Act only if they bear \xe2\x80\x9ca continuous\nsurface connection to bodies that are \xe2\x80\x98waters of the United States\xe2\x80\x99 in their own right\xe2\x80\x9d\xe2\x80\x94\nwaters, that is, that satisfy the plurality\xe2\x80\x99s requirement of permanent standing water or\ncontinuous flow. Ante, at 23\xe2\x80\x9324.\nThe plurality\xe2\x80\x99s first requirement\xe2\x80\x94permanent standing water or continuous flow, at least for\na period of \xe2\x80\x9csome months,\xe2\x80\x9d ante, at 13\xe2\x80\x9314, and n.5\xe2\x80\x94makes little practical sense in a\nstatute concerned with downstream water quality. The merest trickle, if continuous, would\ncount as a \xe2\x80\x9cwater\xe2\x80\x9d subject to federal regulation, while torrents thundering at irregular\nintervals through otherwise dry channels would not. Though the plurality seems to presume\nthat such irregular flows are too insignificant to be of concern in a statute focused on\n\xe2\x80\x9cwaters,\xe2\x80\x9d that may not always be true. Areas in the western parts of the Nation provide\nsome examples. The Los Angeles River, for instance, ordinarily carries only a trickle of\n127\n\n\x0cwater and often looks more like a dry roadway than a river. * * * Yet it periodically releases\nwater-volumes so powerful and destructive that it has been encased in concrete and steel\nover a length of some 50 miles. * * * Though this particular waterway might satisfy the\nplurality\xe2\x80\x99s test, it is illustrative of what often-dry watercourses can become when rain waters\nflow. * * *\n***\nIt follows that the Corps can reasonably interpret the Act to cover the paths of such\nimpermanent streams.\n***\nThe plurality\xe2\x80\x99s second limitation\xe2\x80\x94exclusion of wetlands lacking a continuous surface\nconnection to other jurisdictional waters\xe2\x80\x94is also unpersuasive. To begin with, the plurality\nis wrong to suggest that wetlands are \xe2\x80\x9cindistinguishable\xe2\x80\x9d from waters to which they bear a\nsurface connection. Ante, at 37. Even if the precise boundary may be imprecise, a bog or\nswamp is different from a river. The question is what circumstances permit a bog, swamp,\nor other nonnavigable wetland to constitute a \xe2\x80\x9cnavigable water\xe2\x80\x9d under the Act\xe2\x80\x94as\n\xc2\xa7 1344(g)(1), if nothing else, indicates is sometimes possible, see supra, at 10\xe2\x80\x9311.\nRiverside Bayview addressed that question and its answer is inconsistent with the\nplurality\xe2\x80\x99s theory. There, in upholding the Corps\xe2\x80\x99 authority to regulate \xe2\x80\x9cwetlands adjacent to\nother bodies of water over which the Corps has jurisdiction,\xe2\x80\x9d the Court deemed it irrelevant\nwhether \xe2\x80\x9cthe moisture creating the wetlands \xe2\x80\xa6 find[s] its source in the adjacent bodies of\nwater.\xe2\x80\x9d 474 U.S., at 135. The Court further observed that adjacency could serve as a valid\nbasis for regulation even as to \xe2\x80\x9cwetlands that are not significantly intertwined with the\necosystem of adjacent waterways.\xe2\x80\x9d Id., at 135, n.9. \xe2\x80\x9cIf it is reasonable,\xe2\x80\x9d the Court explained,\n\xe2\x80\x9cfor the Corps to conclude that in the majority of cases, adjacent wetlands have significant\neffects on water quality and the aquatic ecosystem, its definition can stand.\xe2\x80\x9d Ibid.\nThe Court in Riverside Bayview did note, it is true, the difficulty of defining where \xe2\x80\x9cwater\nends and land begins,\xe2\x80\x9d id., at 132, and the Court cited that problem as one reason for\ndeferring to the Corps\xe2\x80\x99 view that adjacent wetlands could constitute waters. Given,\nhowever, the further recognition in Riverside Bayview that an overinclusive definition is\npermissible even when it reaches wetlands holding moisture disconnected from adjacent\nwater-bodies, id., at 135, and n.9, Riverside Bayview\xe2\x80\x99s observations about the difficulty of\ndefining the water\xe2\x80\x99s edge cannot be taken to establish that when a clear boundary is\nevident, wetlands beyond the boundary fall outside the Corps\xe2\x80\x99 jurisdiction.\n***\nSWANCC, likewise, does not support the plurality\xe2\x80\x99s surface-connection requirement.\nSWANCC\xe2\x80\x99s holding that \xe2\x80\x9cnonnavigable, isolated, intrastate waters,\xe2\x80\x9d 531 U.S., at 171, are\n128\n\n\x0cnot \xe2\x80\x9cnavigable waters\xe2\x80\x9d is not an explicit or implicit overruling of Riverside Bayview\xe2\x80\x99s\napproval of adjacency as a factor in determining the Corps\xe2\x80\x99 jurisdiction. In rejecting the\nCorps\xe2\x80\x99 claimed authority over the isolated ponds in SWANCC, the Court distinguished\nadjacent nonnavigable waters such as the wetlands addressed in Riverside Bayview. 531\nU.S., at 167, 170\xe2\x80\x93171.\nAs Riverside Bayview recognizes, the Corps\xe2\x80\x99 adjacency standard is reasonable in some of\nits applications. Indeed, the Corps\xe2\x80\x99 view draws support from the structure of the Act, while\nthe plurality\xe2\x80\x99s surface-water-connection requirement does not.\n***\nAs the Court noted in Riverside Bayview, \xe2\x80\x9cthe Corps has concluded that wetlands may\nserve to filter and purify water draining into adjacent bodies of water, 33 C.F.R.\n\xc2\xa7 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and\nstreams and thus prevent flooding and erosion, see \xc2\xa7\xc2\xa7 320.4(b)(2)(iv) and (v).\xe2\x80\x9d 474 U.S., at\n134. Where wetlands perform these filtering and runoff-control functions, filling them may\nincrease downstream pollution, much as a discharge of toxic pollutants would. Not only will\ndirty water no longer be stored and filtered but also the act of filling and draining itself may\ncause the release of nutrients, toxins, and pathogens that were trapped, neutralized, and\nperhaps amenable to filtering or detoxification in the wetlands. * * * In many cases,\nmoreover, filling in wetlands separated from another water by a berm can mean that flood\nwater, impurities, or runoff that would have been stored or contained in the wetlands will\ninstead flow out to major waterways. With these concerns in mind, the Corps\xe2\x80\x99 definition of\nadjacency is a reasonable one, for it may be the absence of an interchange of waters prior\nto the dredge and fill activity that makes protection of the wetlands critical to the statutory\nscheme.\n***\nIt bears mention also that the plurality\xe2\x80\x99s overall tone and approach\xe2\x80\x94from the\ncharacterization of acres of wetlands destruction as \xe2\x80\x9cbackfilling \xe2\x80\xa6 wet fields,\xe2\x80\x9d ante, at 2, to\nthe rejection of Corps authority over \xe2\x80\x9cman-made drainage ditches\xe2\x80\x9d and \xe2\x80\x9cdry arroyos\xe2\x80\x9d without\nregard to how much water they periodically carry, ante, at 15, to the suggestion, seemingly\ncontrary to Congress\xe2\x80\x99 judgment, that discharge of fill material is inconsequential for\nadjacent waterways, ante, at 26, and n.11\xe2\x80\x94seems unduly dismissive of the interests\nasserted by the United States in these cases. Important public interests are served by the\nClean Water Act in general and by the protection of wetlands in particular. To give just one\nexample, amici here have noted that nutrient-rich runoff from the Mississippi River has\ncreated a hypoxic, or oxygen-depleted, \xe2\x80\x9cdead zone\xe2\x80\x9d in the Gulf of Mexico that at times\napproaches the size of Massachusetts and New Jersey. * * * Scientific evidence indicates\nthat wetlands play a critical role in controlling and filtering runoff. * * * It is true, as the\nplurality indicates, that environmental concerns provide no reason to disregard limits in the\n129\n\n\x0cstatutory text, ante, at 27, but in my view the plurality\xe2\x80\x99s opinion is not a correct reading of\nthe text. The limits the plurality would impose, moreover, give insufficient deference to\nCongress\xe2\x80\x99 purposes in enacting the Clean Water Act and to the authority of the Executive\nto implement that statutory mandate.\nFinally, it should go without saying that because the plurality presents its interpretation of\nthe Act as the only permissible reading of the plain text, ante, at 20, 23\xe2\x80\x9324, the Corps\nwould lack discretion, under the plurality\xe2\x80\x99s theory, to adopt contrary regulations. The Chief\nJustice suggests that if the Corps and EPA had issued new regulations after SWANCC they\nwould have \xe2\x80\x9cenjoyed plenty of room to operate in developing some notion of an outer\nbound to the reach of their authority\xe2\x80\x9d and thus could have avoided litigation of the issues\nwe address today. Ante, at 2. That would not necessarily be true under the opinion The\nChief Justice has joined. New rulemaking could have averted the disagreement here only if\nthe Corps had anticipated the unprecedented reading of the Act that the plurality advances.\nB\nWhile the plurality reads nonexistent requirements into the Act, the dissent reads a central\nrequirement out\xe2\x80\x94namely, the requirement that the word \xe2\x80\x9cnavigable\xe2\x80\x9d in \xe2\x80\x9cnavigable waters\xe2\x80\x9d\nbe given some importance. Although the Court has held that the statute\xe2\x80\x99s language invokes\nCongress\xe2\x80\x99 traditional authority over waters navigable in fact or susceptible of being made\nso, SWANCC, 531 U.S., at 172 (citing Appalachian Power, 311 U.S., at 407\xe2\x80\x93408), the\ndissent would permit federal regulation whenever wetlands lie alongside a ditch or drain,\nhowever remote and insubstantial, that eventually may flow into traditional navigable\nwaters. The deference owed to the Corps\xe2\x80\x99 interpretation of the statute does not extend so\nfar.\nCongress\xe2\x80\x99 choice of words creates difficulties, for the Act contemplates regulation of certain\n\xe2\x80\x9cnavigable waters\xe2\x80\x9d that are not in fact navigable. Supra, at 10\xe2\x80\x9311. Nevertheless, the word\n\xe2\x80\x9cnavigable\xe2\x80\x9d in the Act must be given some effect. See SWANCC, supra, at 172. Thus, in\nSWANCC the Court rejected the Corps\xe2\x80\x99 assertion of jurisdiction over isolated ponds and\nmudflats bearing no evident connection to navigable-in-fact waters. And in Riverside\nBayview, while the Court indicated that \xe2\x80\x9cthe term \xe2\x80\x98navigable\xe2\x80\x99 as used in the Act is of limited\nimport,\xe2\x80\x9d 474 U.S., at 133, it relied, in upholding jurisdiction, on the Corps\xe2\x80\x99 judgment that\n\xe2\x80\x9cwetlands adjacent to lakes, rivers, streams, and other bodies of water may function as\nintegral parts of the aquatic environment even when the moisture creating the wetlands\ndoes not find its source in the adjacent bodies of water,\xe2\x80\x9d id., at 135. The implication, of\ncourse, was that wetlands\xe2\x80\x99 status as \xe2\x80\x9cintegral parts of the aquatic environment\xe2\x80\x9d\xe2\x80\x94that is,\ntheir significant nexus with navigable waters\xe2\x80\x94was what established the Corps\xe2\x80\x99 jurisdiction\nover them as waters of the United States.\nConsistent with SWANCC and Riverside Bayview and with the need to give the term\n\xe2\x80\x9cnavigable\xe2\x80\x9d some meaning, the Corps\xe2\x80\x99 jurisdiction over wetlands depends upon the\n130\n\n\x0cexistence of a significant nexus between the wetlands in question and navigable waters in\nthe traditional sense. The required nexus must be assessed in terms of the statute\xe2\x80\x99s goals\nand purposes. Congress enacted the law to \xe2\x80\x9crestore and maintain the chemical, physical,\nand biological integrity of the Nation\xe2\x80\x99s waters,\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1251(a), and it pursued that\nobjective by restricting dumping and filling in \xe2\x80\x9cnavigable waters,\xe2\x80\x9d \xc2\xa7\xc2\xa7 1311(a), 1362(12).\nWith respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has\nrecognized, that wetlands can perform critical functions related to the integrity of other\nwaters\xe2\x80\x94functions such as pollutant trapping, flood control, and runoff storage. 33 C.F.R. \xc2\xa7\n320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the\nstatutory phrase \xe2\x80\x9cnavigable waters,\xe2\x80\x9d if the wetlands, either alone or in combination with\nsimilarly situated lands in the region, significantly affect the chemical, physical, and\nbiological integrity of other covered waters more readily understood as \xe2\x80\x9cnavigable.\xe2\x80\x9d When,\nin contrast, wetlands\xe2\x80\x99 effects on water quality are speculative or insubstantial, they fall\noutside the zone fairly encompassed by the statutory term \xe2\x80\x9cnavigable waters.\xe2\x80\x9d\nAlthough the dissent acknowledges that wetlands\xe2\x80\x99 ecological functions vis-a-vis other\ncovered waters are the basis for the Corps\xe2\x80\x99 regulation of them, post, at 10\xe2\x80\x9311, it concludes\nthat the ambiguity in the phrase \xe2\x80\x9cnavigable waters\xe2\x80\x9d allows the Corps to construe the statute\nas reaching all \xe2\x80\x9cnon-isolated wetlands,\xe2\x80\x9d just as it construed the Act to reach the wetlands\nadjacent to navigable-in-fact waters in Riverside Bayview, see post, at 11. This, though,\nseems incorrect. The Corps\xe2\x80\x99 theory of jurisdiction in these consolidated cases\xe2\x80\x94adjacency\nto tributaries, however remote and insubstantial\xe2\x80\x94raises concerns that go beyond the\nholding of Riverside Bayview; and so the Corps\xe2\x80\x99 assertion of jurisdiction cannot rest on that\ncase.\nAs applied to wetlands adjacent to navigable-in-fact waters, the Corps\xe2\x80\x99 conclusive standard\nfor jurisdiction rests upon a reasonable inference of ecologic interconnection, and the\nassertion of jurisdiction for those wetlands is sustainable under the Act by showing\nadjacency alone. That is the holding of Riverside Bayview. Furthermore, although the\nRiverside Bayview Court reserved the question of the Corps\xe2\x80\x99 authority over \xe2\x80\x9cwetlands that\nare not adjacent to bodies of open water,\xe2\x80\x9d 474 U.S., at 131\xe2\x80\x93132, n.8, and in any event\naddressed no factual situation other than wetlands adjacent to navigable-in-fact waters, it\nmay well be the case that Riverside Bayview\xe2\x80\x99s reasoning\xe2\x80\x94supporting jurisdiction without\nany inquiry beyond adjacency\xe2\x80\x94could apply equally to wetlands adjacent to certain major\ntributaries. Through regulations or adjudication, the Corps may choose to identify\ncategories of tributaries that, due to their volume of flow (either annually or on average),\ntheir proximity to navigable waters, or other relevant considerations, are significant enough\nthat wetlands adjacent to them are likely, in the majority of cases, to perform important\nfunctions for an aquatic system incorporating navigable waters.\nThe Corps\xe2\x80\x99 existing standard for tributaries, however, provides no such assurance. As\nnoted earlier, the Corps deems a water a tributary if it feeds into a traditional navigable\nwater (or a tributary thereof) and possesses an ordinary high-water mark, defined as a \xe2\x80\x9cline\n131\n\n\x0con the shore established by the fluctuations of water and indicated by [certain] physical\ncharacteristics,\xe2\x80\x9d \xc2\xa7 328.3(e). See supra, at 3. This standard presumably provides a rough\nmeasure of the volume and regularity of flow. Assuming it is subject to reasonably\nconsistent application, * * * it may well provide a reasonable measure of whether specific\nminor tributaries bear a sufficient nexus with other regulated waters to constitute \xe2\x80\x9cnavigable\nwaters\xe2\x80\x9d under the Act. Yet the breadth of this standard\xe2\x80\x94which seems to leave wide room\nfor regulation of drains, ditches, and streams remote from any navigable-in-fact water and\ncarrying only minor water-volumes towards it\xe2\x80\x94precludes its adoption as the determinative\nmeasure of whether adjacent wetlands are likely to play an important role in the integrity of\nan aquatic system comprising navigable waters as traditionally understood. Indeed, in\nmany cases wetlands adjacent to tributaries covered by this standard might appear little\nmore related to navigable-in-fact waters than were the isolated ponds held to fall beyond\nthe Act\xe2\x80\x99s scope in SWANCC. * * *\nWhen the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely\non adjacency to establish its jurisdiction. Absent more specific regulations, however, the\nCorps must establish a significant nexus on a case-by-case basis when it seeks to regulate\nwetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth\nof the Corps\xe2\x80\x99 regulations, this showing is necessary to avoid unreasonable applications of\nthe statute. Where an adequate nexus is established for a particular wetland, it may be\npermissible, as a matter of administrative convenience or necessity, to presume covered\nstatus for other comparable wetlands in the region. That issue, however, is neither raised\nby these facts nor addressed by any agency regulation that accommodates the nexus\nrequirement outlined here.\nThis interpretation of the Act does not raise federalism or Commerce Clause concerns\nsufficient to support a presumption against its adoption. To be sure, the significant nexus\nrequirement may not align perfectly with the traditional extent of federal authority. Yet in\nmost cases regulation of wetlands that are adjacent to tributaries and possess a significant\nnexus with navigable waters will raise no serious constitutional or federalism difficulty. Cf.\nPierce County v. Guillen, 537 U.S. 129, 147 (2003) (upholding federal legislation \xe2\x80\x9caimed at\nimproving safety in the channels of commerce\xe2\x80\x9d); Oklahoma ex rel. Phillips v. Guy F.\nAtkinson Co., 313 U.S. 508, 524\xe2\x80\x93525 (1941) (\xe2\x80\x9c[J]ust as control over the non-navigable\nparts of a river may be essential or desirable in the interests of the navigable portions, so\nmay the key to flood control on a navigable stream be found in whole or in part in flood\ncontrol on its tributaries \xe2\x80\xa6. [T]he exercise of the granted power of Congress to regulate\ninterstate commerce may be aided by appropriate and needful control of activities and\nagencies which, though intrastate, affect that commerce\xe2\x80\x9d). As explained earlier, moreover,\nand as exemplified by SWANCC, the significant-nexus test itself prevents problematic\napplications of the statute. See supra, at 19\xe2\x80\x9320; 531 U.S., at 174. The possibility of\nlegitimate Commerce Clause and federalism concerns in some circumstances does not\nrequire the adoption of an interpretation that departs in all cases from the Act\xe2\x80\x99s text and\nstructure. See Gonzales v. Raich, 545 U.S. 1, __ (2005) (slip op., at 14) (\xe2\x80\x9c[W]hen a general\n132\n\n\x0cregulatory statute bears a substantial relation to commerce, the de minimis character of\nindividual instances arising under that statute is of no consequence\xe2\x80\x9d (internal quotation\nmarks omitted)).\nIII\nIn both the consolidated cases before the Court the record contains evidence suggesting\nthe possible existence of a significant nexus according to the principles outlined above.\nThus the end result in these cases and many others to be considered by the Corps may be\nthe same as that suggested by the dissent, namely, that the Corps\xe2\x80\x99 assertion of jurisdiction\nis valid. Given, however, that neither the agency nor the reviewing courts properly\nconsidered the issue, a remand is appropriate, in my view, for application of the controlling\nlegal standard.\n***\nIn these consolidated cases I would vacate the judgments of the Court of Appeals and\nremand for consideration whether the specific wetlands at issue possess a significant\nnexus with navigable waters.\nJustice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer\njoin, dissenting.\n***\nThe narrow question presented in No. 04\xe2\x80\x931034 is whether wetlands adjacent to tributaries\nof traditionally navigable waters are \xe2\x80\x9cwaters of the United States\xe2\x80\x9d subject to the jurisdiction\nof the Army Corps; the question in No. 04\xe2\x80\x931384 is whether a manmade berm separating a\nwetland from the adjacent tributary makes a difference. The broader question is whether\nregulations that have protected the quality of our waters for decades, that were implicitly\napproved by Congress, and that have been repeatedly enforced in case after case, must\nnow be revised in light of the creative criticisms voiced by the plurality and Justice Kennedy\ntoday. Rejecting more than 30 years of practice by the Army Corps, the plurality disregards\nthe nature of the congressional delegation to the agency and the technical and complex\ncharacter of the issues at stake. Justice Kennedy similarly fails to defer sufficiently to the\nCorps, though his approach is far more faithful to our precedents and to principles of\nstatutory interpretation than is the plurality\xe2\x80\x99s.\nIn my view, the proper analysis is straightforward. The Army Corps has determined that\nwetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our\nNation\xe2\x80\x99s waters by, among other things, providing habitat for aquatic animals, keeping\nexcessive sediment and toxic pollutants out of adjacent waters, and reducing downstream\nflooding by absorbing water at times of high flow. The Corps\xe2\x80\x99 resulting decision to treat\n133\n\n\x0cthese wetlands as encompassed within the term \xe2\x80\x9cwaters of the United States\xe2\x80\x9d is a\nquintessential example of the Executive\xe2\x80\x99s reasonable interpretation of a statutory provision.\nSee Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842\xe2\x80\x93\n845 (1984).\nOur unanimous decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121\n(1985), was faithful to our duty to respect the work product of the Legislative and Executive\nBranches of our Government. Today\xe2\x80\x99s judicial amendment of the Clean Water Act is not.\n***\nUnlike SWANCC and like Riverside Bayview, the cases before us today concern wetlands\nthat are adjacent to \xe2\x80\x9cnavigable bodies of water [or] their tributaries,\xe2\x80\x9d 474 U.S., at 123.\nSpecifically, these wetlands abut tributaries of traditionally navigable waters. As we\nrecognized in Riverside Bayview, the Corps has concluded that such wetlands play\nimportant roles in maintaining the quality of their adjacent waters, see id., at 134\xe2\x80\x93135, and\nconsequently in the waters downstream. Among other things, wetlands can offer \xe2\x80\x9cnesting,\nspawning, rearing and resting sites for aquatic or land species\xe2\x80\x9d; \xe2\x80\x9cserve as valuable storage\nareas for storm and flood waters\xe2\x80\x9d; and provide \xe2\x80\x9csignificant water purification functions.\xe2\x80\x9d 33\nC.F.R. \xc2\xa7 320.4(b)(2) (2005); 474 U.S., at 134\xe2\x80\x93135. These values are hardly \xe2\x80\x9cindependent\xe2\x80\x9d\necological considerations as the plurality would have it, ante, at 23\xe2\x80\x94instead, they are\nintegral to the \xe2\x80\x9cchemical, physical, and biological integrity of the Nation\xe2\x80\x99s waters,\xe2\x80\x9d 33 U.S.C.\n\xc2\xa7 1251(a). Given that wetlands serve these important water quality roles and given the\nambiguity inherent in the phrase \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d the Corps has reasonably\ninterpreted its jurisdiction to cover non-isolated wetlands. See 474 U.S., at 131\xe2\x80\x93135.\nThis conclusion is further confirmed by Congress\xe2\x80\x99 deliberate acquiescence in the Corps\xe2\x80\x99\nregulations in 1977. Id., at 136. Both Chambers conducted extensive debates about the\nCorps\xe2\x80\x99 regulatory jurisdiction over wetlands, rejected efforts to limit this jurisdiction, and\nappropriated funds for a \xe2\x80\x9c \xe2\x80\x98National Wetlands Inventory\xe2\x80\x99 \xe2\x80\x9d to help the States \xe2\x80\x9c \xe2\x80\x98in the\ndevelopment and operation of programs under this Act.\xe2\x80\x99 \xe2\x80\x9d Id., at 135\xe2\x80\x93139 (quoting 33\nU.S.C. \xc2\xa7 1288(i)(2)). We found these facts significant in Riverside Bayview, see 474 U.S.,\nat 135\xe2\x80\x93139, as we acknowledged in SWANCC. See 531 U.S., at 170\xe2\x80\x93171 (noting that\n\xe2\x80\x9c[b]eyond Congress\xe2\x80\x99 desire to regulate wetlands adjacent to \xe2\x80\x98navigable waters,\xe2\x80\x99\nrespondents point us to no persuasive evidence\xe2\x80\x9d of congressional acquiescence (emphasis\nadded)).\nThe Corps\xe2\x80\x99 exercise of jurisdiction is reasonable even though not every wetland adjacent to\na traditionally navigable water or its tributary will perform all (or perhaps any) of the water\nquality functions generally associated with wetlands. Riverside Bayview made clear that\njurisdiction does not depend on a wetland-by-wetland inquiry. 474 U.S., at 135, n.9.\nInstead, it is enough that wetlands adjacent to tributaries generally have a significant nexus\nto the watershed\xe2\x80\x99s water quality. If a particular wetland is \xe2\x80\x9cnot significantly intertwined with\n134\n\n\x0cthe ecosystem of adjacent waterways,\xe2\x80\x9d then the Corps may allow its development \xe2\x80\x9csimply\nby issuing a permit.\xe2\x80\x9d Ibid.6 Accordingly, for purposes of the Corps\xe2\x80\x99 jurisdiction it is of no\nsignificance that the wetlands in No. 04\xe2\x80\x931034 serve flood control and sediment sink\nfunctions, but may not do much to trap other pollutants, supra, at 4\xe2\x80\x935, and n.2, or that the\nwetland in No. 04\xe2\x80\x931328 keeps excess water from Lake St. Clair but may not trap sediment,\nsee supra, at 5\xe2\x80\x936.\n***\nIn final analysis, however, concerns about the appropriateness of the Corps\xe2\x80\x99 30-year\nimplementation of the Clean Water Act should be addressed to Congress or the Corps\nrather than to the Judiciary. Whether the benefits of particular conservation measures\noutweigh their costs is a classic question of public policy that should not be answered by\nappointed judges. The fact that large investments are required to finance large\ndevelopments merely means that those who are most adversely affected by the Corps\xe2\x80\x99\npermitting decisions are persons who have the ability to communicate effectively with their\nrepresentatives. Unless and until they succeed in convincing Congress (or the Corps) that\nclean water is less important today than it was in the 1970\xe2\x80\x99s, we continue to owe deference\nto regulations satisfying the \xe2\x80\x9cevident breadth of congressional concern for protection of\nwater quality and aquatic ecosystems\xe2\x80\x9d that all of the Justices on the Court in 1985\nrecognized in Riverside Bayview, 474 U.S., at 133.\n***\nJustice Kennedy\xe2\x80\x99s \xe2\x80\x9csignificant nexus\xe2\x80\x9d test will probably not do much to diminish the number\nof wetlands covered by the Act in the long run. Justice Kennedy himself recognizes that the\nrecords in both cases contain evidence that \xe2\x80\x9cshould permit the establishment of a\nsignificant nexus,\xe2\x80\x9d ante, at 27, see also ante, at 26, and it seems likely that evidence would\nsupport similar findings as to most (if not all) wetlands adjacent to tributaries of navigable\nwaters. But Justice Kennedy\xe2\x80\x99s approach will have the effect of creating additional work for\nall concerned parties. Developers wishing to fill wetlands adjacent to ephemeral or\nintermittent tributaries of traditionally navigable waters will have no certain way of knowing\nwhether they need to get \xc2\xa7 404 permits or not. And the Corps will have to make case-bycase (or category-by-category) jurisdictional determinations, which will inevitably increase\nthe time and resources spent processing permit applications. These problems are precisely\nthe ones that Riverside Bayview\xe2\x80\x99s deferential approach avoided. See 474 U.S., at 135, n.9\n(noting that it \xe2\x80\x9cis of little moment\xe2\x80\x9d if the Corps\xe2\x80\x99 jurisdiction encompasses some wetlands \xe2\x80\x9cnot\nsignificantly intertwined\xe2\x80\x9d with other waters of the United States). Unlike Justice Kennedy, I\nsee no reason to change Riverside Bayview\xe2\x80\x99s approach\xe2\x80\x94and every reason to continue to\n6\n\nIndeed, \xe2\x80\x9c[t]he Corps approves virtually all section 404 permit[s],\xe2\x80\x9d though often requiring\napplicants to avoid or mitigate impacts to wetlands and other waters. GAO Report 8.\n135\n\n\x0cdefer to the Executive\xe2\x80\x99s sensible, bright-line rule.\n***\nI would affirm the judgments in both cases, and respectfully dissent from the decision of five\nMembers of this Court to vacate and remand. * * * In these cases, * * * while both the\nplurality and Justice Kennedy agree that there must be a remand for further proceedings,\ntheir respective opinions define different tests to be applied on remand. Given that all four\nJustices who have joined this opinion would uphold the Corps\xe2\x80\x99 jurisdiction in both of these\ncases\xe2\x80\x94and in all other cases in which either the plurality\xe2\x80\x99s or Justice Kennedy\xe2\x80\x99s test is\nsatisfied\xe2\x80\x94on remand each of the judgments should be reinstated if either of those tests is\nmet.14\n***\nQuestions and Comments\n1.\n\nIn light of the fact that there was no majority opinion in the Rapanos case, it is a little\ndifficult to determine precisely what further limits the Court placed on Clean Water\nAct jurisdiction. Parsing the opinions closely may help clarify what the Court did and\ndid not hold. For instance, after SWANCC, some commentators believed that Clean\nWater Act jurisdiction might be limited to traditional navigable waters and adjacent\nwetlands. Did the plurality or any of the Justices adopt that narrow reading of the\nstatute? Is the SWANCC focus on limiting jurisdiction to Congress\xe2\x80\x99 commerce power\nover navigation retained by a majority of the Justices? Is Justice Breyer a voice\ncrying out in the wilderness?\n\n2.\n\nAs noted above, the Rapanos Court focused on whether non-navigable tributaries of\ntraditional navigable waters were \xe2\x80\x9cwaters of the United States\xe2\x80\x9d and on whether\nwetlands adjacent to non-navigable tributaries were \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d\nWhat test does the plurality adopt to answer those two questions? Note the\nplurality\xe2\x80\x99s distinction between ephemeral or intermittent streams, on the one hand,\nand seasonal rivers or waters that dry up in extraordinary circumstances. Is the\nplurality sliding down a slippery slope?\n\n3.\n\nPrior to Rapanos, the lower federal courts routinely deferred to the government\xe2\x80\x99s\n\n14\n\nI assume that Justice Kennedy\xe2\x80\x99s approach will be controlling in most cases because it\ntreats more of the Nation\xe2\x80\x99s waters as within the Corps\xe2\x80\x99 jurisdiction, but in the unlikely event\nthat the plurality\xe2\x80\x99s test is met but Justice Kennedy\xe2\x80\x99s is not, courts should also uphold the\nCorps\xe2\x80\x99 jurisdiction. In sum, in these and future cases the United States may elect to prove\njurisdiction under either test.\n136\n\n\x0cdeterminations that non-navigable tributaries of traditional navigable waters were\n\xe2\x80\x9cwaters of the United States.\xe2\x80\x9d Does the plurality ignore the Chevron analysis? In\nconstruing the statute, does the plurality focus on the water quality purposes of the\nstatute or legislative history, as the Riverside Bayview Court had done? Why not?\nOn what purposes of the statute does the plurality focus? Which statutory\nconstruction canons?\n4.\n\nWhat do you think of Justice Scalia\xe2\x80\x99s tone in the plurality opinion? What did Justice\nKennedy think about it? It is interesting to compare the plurality\xe2\x80\x99s factual description\nof the plight of John Rapanos, who \xe2\x80\x9cfaced 63 months in prison and hundreds of\nthousands of dollars in criminal and civil fines\xe2\x80\x9d for \xe2\x80\x9cbackfilling his own wet fields\xe2\x80\x9d with\nthe factual descriptions provided by Justice Kennedy and the dissenting Justices,\nwho point out that Rapanos threatened to \xe2\x80\x9cdestroy\xe2\x80\x9d the consultant he hired to\ndelineate his property unless the consultant destroyed the report that identified the\nwetlands on the property, and that Rapanos ignored numerous cease and desist\norders from the State and EPA when he filled the wetlands.\n\n5.\n\nJustice Kennedy wrote a separate opinion, concurring in the Court\xe2\x80\x99s judgment. Does\nKennedy apply the Chevron analysis when determining whether the government can\nregulate \xe2\x80\x9cephemeral\xe2\x80\x9d or \xe2\x80\x9cintermittent\xe2\x80\x9d streams? Why does Justice Kennedy feel such\nregulation is appropriate? Does he focus on the \xe2\x80\x9csignificant nexus\xe2\x80\x9d in his analysis of\nthe non-navigable waters?\n\n6.\n\nWhat test does Justice Kennedy suggest should apply to determine whether\nwetlands can be regulated? Does he adopt a different test depending on whether\nthe wetlands are adjacent to traditional navigable waters or whether they are\nadjacent to non-navigable tributaries? Is his interpretation of the statute based on\nthe plain meaning of the text, the purposes of the statute, the legislative history, or\nsome combination of all three? Does Kennedy apply the Chevron analysis? How\ndoes he respond to the plurality\xe2\x80\x99s federalism and constitutional concerns?\n\n7.\n\nApplying the \xe2\x80\x9cSignificant Nexus\xe2\x80\x9d Test: Does Kennedy believe that there must be\na hydrological connection between the wetlands and a traditional navigable in fact\nwater? Is a hydrological connection sufficient for Justice Kennedy? What types of\nconnections between wetlands and a traditional navigable water might constitute a\n\xe2\x80\x9csignificant nexus\xe2\x80\x9d? Would Kennedy focus only on the specific wetlands that the\ngovernment seeks to regulate in determining whether the wetlands have a\n\xe2\x80\x9csignificant nexus\xe2\x80\x9d to other waters? Do the plurality or dissenting Justices believe\nthat such ecological connections are sufficient to establish jurisdiction?\n\n8.\n\nJustice Stevens, in his dissenting opinion, argues for a straightforward application of\nthe Chevron analysis. Steven\xe2\x80\x99s focus on the water quality protection purposes of the\nClean Water Act, Congressional acquiescence, and deference to agency expertise\n137\n\n\x0cecho the approach taken in the Court\xe2\x80\x99s unanimous Riverside Bayview Homes\ndecision. Note how the dissenting Justices and Justice Kennedy, in his concurrence,\nrely heavily on science and the scientific expertise of agencies in crafting their\nopinions.\n9.\n\nA Missed Opportunity?: Justice Breyer, in a separate dissent, and Justice Roberts,\nin a separate concurring opinion, both lament the government\xe2\x80\x99s failure to adopt\nregulations to clarify the meaning of \xe2\x80\x9cwaters of the United States\xe2\x80\x9d after SWANCC\nand both note that the government\xe2\x80\x99s regulations would have been accorded\ndeference under Chevron if they had pursued that route. However, Justice Kennedy\nsuggests, in his concurrence, that if the plurality\xe2\x80\x99s reasoning had been adopted by a\nmajority of the Court, the Corps and EPA would not be accorded Chevron deference\nif, after the Rapanos decision, they adopted rules to clarify that ephemeral and\nintermittent streams were \xe2\x80\x9cwaters of the United States\xe2\x80\x9d and to adopt a definition of\n\xe2\x80\x9cadjacent\xe2\x80\x9d similar to the approach that they were applying in practice before the\ndecision. Why would those rules not be accorded Chevron deference? See National\nCable & Telecommunications Association v. Brand X Internet Services, 545 U.S.\n967 (2005).\n\n10.\n\nRapanos Post-script: The United States finally settled the civil lawsuit against\nRapanos in December 2008, and the defendants agreed to pay $150,000 in civil\npenalties, create 100 acres of wetlands, and preserve 134 acres of wetlands. The\nconsent decree is available at:\nhttp://www2.epa.gov/sites/production/files/documents/rapanos-cd.pdf\n\n11.\n\nMarks or Counting Noses?: The Justices divided 4-4-1 in Rapanos. Justice\nRoberts, in a concurring opinion, suggests that lower courts and regulated parties\n\xe2\x80\x9cwill now have to feel their way on a case-by-case basis\xe2\x80\x9d. 547 U.S. at 758 (Roberts,\nconcurring). He provides some guidance on how the decision might be read by\nciting Grutter v. Bollinger, 539 U.S. 306 (2003) (discussing Marks v. United States,\n430 U.S. 188 (1977)). The dissenting Justices suggest an alternative approach for\nreconciling the various opinions and developing a test for determining when it is\nappropriate to regulate \xe2\x80\x9cnon-navigable tributaries\xe2\x80\x9d and wetlands adjacent to nonnavigable tributaries? Compare the two approaches.\n\n12.\n\nFor various views on the impact of the Rapanos decision shortly after the Court\nissued the decision, see Robin Kundis Craig, Justice Kennedy and Ecosystem\nServices: A Functional Approach to Clean Water Act Jurisdiction After Rapanos, 38\nEnvtl. L. 635 (2008); Jamison E. Colburn, Waters of the United States: Theory,\nPractice and Integrity at the Supreme Court, 34 Fla. St. U. L. Rev. 183 (2007);\nBradford C. Mank, Implementing Rapanos - will Justice Kennedy\xe2\x80\x99s Significant Nexus\nTest Provide a Workable Standard for Lower Courts, Regulators and Developers?,\n40 Indiana L. Rev. 291 (2007); Mark Squillace, From \xe2\x80\x98Navigable Waters\xe2\x80\x99 to\n138\n\n\x0c\xe2\x80\x98Constitutional Waters\xe2\x80\x99, 40 U. Mich. J.L. Reform 799 (2007); James Murphy,\nMuddying the Waters of the Clean Water Act: Rapanos v. United States and the\nFuture of America\xe2\x80\x99s Wetlands, 31 Vt. L. Rev. 356 (2006).\nE.\n\nPost-Rapanos Developments\n\nAfter the Rapanos decision, there was confusion regarding whether jurisdictional\ndeterminations regarding non-navigable tributaries and wetlands adjacent to non-navigable\ntributaries should be made based on the plurality\xe2\x80\x99s test, Justice Kennedy\xe2\x80\x99s test, or both. To\nrecap, the following chart highlights the differences between the plurality\xe2\x80\x99s opinion and\nJustice Kennedy\xe2\x80\x99s opinion.\nNon-Navigable Tributaries\n\nWetlands Adjacent to NonNavigable Tributaries\n\nPlurality\n\nJurisdiction exists if the water is\na \xe2\x80\x9crelatively permanent,\ncontinuously flowing\xe2\x80\x9d body of\nwater that flows into a traditional\nnavigable water.\n\nJurisdiction exists if the wetlands\nhave a \xe2\x80\x9ccontinuous surface\nconnection\xe2\x80\x9d with a relatively\npermanent, continuously flowing\nbody of water that flows into a\ntraditional navigable water.\n\nKennedy\n\nJurisdiction exists if the water\nhas a significant nexus to a\ntraditional navigable water.\n\nJurisdiction exists if the wetlands\nhave a significant nexus to a\ntraditional navigable water.\n\nA \xe2\x80\x9csignificant nexus\xe2\x80\x9d exists\nwhere the water \xe2\x80\x9ceither alone or\nin combination with similarly\nsituated lands in the region,\nsignificantly affects the\nchemical, physical, and\nbiological integrity\xe2\x80\x9d of a\ntraditional navigable water.\n\nA \xe2\x80\x9csignificant nexus\xe2\x80\x9d exists where a\nwetland \xe2\x80\x9ceither alone or in\ncombination with similarly situated\nlands in the region, significantly\naffects the chemical, physical, and\nbiological integrity\xe2\x80\x9d of a traditional\nnavigable water.\n\nJustice Stevens, for the dissenting Justices, wrote that Justice Kennedy\xe2\x80\x99s \xe2\x80\x9csignificant\nnexus\xe2\x80\x9d test would \xe2\x80\x9cprobably not do much to diminish the number of wetlands covered by\nthe Act in the long run.\xe2\x80\x9d 547 U.S. at 808 (Stevens, dissenting) However, just as elimination\nof the \xe2\x80\x9cmigratory bird\xe2\x80\x9d test made it more time-consuming to document and support\njurisdictional determinations over \xe2\x80\x9cisolated waters,\xe2\x80\x9d the requirement that the Corps and EPA\ndemonstrate a \xe2\x80\x9csignificant nexus\xe2\x80\x9d between wetlands or non-navigable tributaries and\ntraditional navigable waters would increase the time and resources necessary to document\n139\n\n\x0cand support jurisdictional determinations over those waters.\nJustice Kennedy\xe2\x80\x99s test would allow the Corps and EPA to regulate a much broader\nuniverse of \xe2\x80\x9cwaters\xe2\x80\x9d than the plurality\xe2\x80\x99s test, but there are some \xe2\x80\x9cwaters\xe2\x80\x9d that could be\nregulated under the plurality\xe2\x80\x99s test that would not be regulated under Kennedy\xe2\x80\x99s test\n(waters that have continuous surface connections to traditional navigable waters, but for\nwhich the government cannot demonstrate a \xe2\x80\x9csignificant nexus\xe2\x80\x9d to the traditional navigable\nwater).\nJust as the SWANCC decision raised concerns that many isolated waters would be\nexcluded from federal regulation, the Rapanos decision raised concerns that many nonnavigable tributaries, including intermittent and ephemeral streams, and wetlands adjacent\nto those non-navigable tributaries, would be excluded from federal regulation. The\nEnvironmental Law Institute released a report that outlined, in great detail, the various\ntypes of waters that would be unprotected at the State level if not protected at the federal\nlevel. See Environmental Law Institute, America\xe2\x80\x99s Vulnerable Waters: Assessing the\nNation\xe2\x80\x99s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, (Aug.\n2011). In a follow-up report, the Institute warned that 36 states have laws that could restrict\nthe authority of state or local agencies to regulate, under their laws, waters that are\nexcluded from federal regulation. See Environmental Law Institute, State Constraints: State\nImposed Limitations on the Authority of Agencies to Regulate waters Beyond the scope of\nthe Federal Clean Water Act 1 (May 2013). The restrictions include \xe2\x80\x9cabsolute or qualified\nprohibitions that require state law to be \xe2\x80\x98no more stringent than\xe2\x80\x99 federal law; property rights\nlimitations; or a combination of the two.\xe2\x80\x9d Id. Once again, therefore, State environmental\nregulators were concerned that the Supreme Court\xe2\x80\x99s interpretation of the Clean Water Act\ncould significantly harm their ability to protect waters and wetlands in their states.\n1.\n\n2008 Guidance\n\nAbout a year after the Court\xe2\x80\x99s ruling in Rapanos, the Corps and EPA issued guidance to\nthe Corps\xe2\x80\x99 district offices and EPA regional offices regarding the implications of the ruling\nfor regulating \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d The agencies took public comment on the\nguidance for seven and a half months and replaced the 2007 joint guidance document with\na revised guidance document in December 2008. In essence, the guidance asserted\njurisdiction over waters that would meet either the Kennedy or plurality tests. This is the\napproach that was suggested by the dissenting Justices in Rapanos, as Justice Stevens\nwrote, \xe2\x80\x9cGiven that all four Justices who have joined this opinion would uphold the Corps\xe2\x80\x99\njurisdiction in both of these cases\xe2\x80\x94and in all other cases in which either the plurality\xe2\x80\x99s or\nJustice Kennedy\xe2\x80\x99s test is satisfied\xe2\x80\x94on remand each of the judgments should be reinstated\nif either of those tests is met.\xe2\x80\x9d 547 U.S. at 810 (Stevens, dissenting). More specifically, the\nguidance provided that the agencies would assert jurisdiction over:\n\xef\x82\xb7\n\nTraditional navigable waters and wetlands adjacent to traditional navigable waters\n140\n\n\x0c\xef\x82\xb7\n\nNon-navigable tributaries of traditional navigable waters that are relatively\npermanent where the tributaries typically flow year round or have continuous flow at\nleast seasonally (e.g. typically three months), and wetlands that direct abut such\ntributaries\n\nThose are the waters that would be regulated under Riverside-Bayview Homes or the\nRapanos plurality\xe2\x80\x99s opinion.\nIn addition, the guidance provided that the agencies would decide jurisdiction over the\nfollowing waters based on a fact-specific analysis to determine whether they have a\nsignificant nexus with a traditional navigable water:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nNon-navigable tributaries that are not relatively permanent\nWetlands adjacent to non-navigable tributaries that are not relatively permanent\nWetlands adjacent to but that do not directly abut a relatively permanent nonnavigable tributary\n\nThose are the waters that would be regulated under Justice Kennedy\xe2\x80\x99s \xe2\x80\x9csignificant nexus\xe2\x80\x9d\ntest from Rapanos.\nThe guidance also provided that the agencies would not exert jurisdiction over swales or\ngullies with low volume or short or infrequent flows or ditches that are excavated wholly in\nuplands and drain only in uplands. Many of the determinations that the agencies have\nmade using the guidance have been upheld in court, as the following section describes in\nmore detail.\n2.\n\nJudicial Interpretation of Rapanos\n\nAs Justice Roberts surmised, courts have been feeling their way on a case-by-case basis\nto determine the reach of Rapanos. There has been a significant amount of litigation in the\nfederal courts focusing on the meaning of \xe2\x80\x9cwaters of the United States\xe2\x80\x9d after Rapanos.\nAccording to an Environmental Law Institute study, by May 2013, federal cases had been\nbrought in two thirds of all of the states in the United States after Rapanos and every\nfederal circuit court, other than the Second Circuit and Tenth Circuit, had issued an opinion\nin a case involving Clean Water Act jurisdictional issues similar to those in Rapanos. See\nEnvironmental Law Institute, State Constraints: State Imposed Limitations on the Authority\nof Agencies to Regulate Waters Beyond the scope of the Federal Clean Water Act 4 (May\n2013).\nThree circuits have held that waters can be regulated if they meet either the \xe2\x80\x9csignificant\nnexus\xe2\x80\x9d test or the plurality test. Three circuits have upheld the \xe2\x80\x9csignificant nexus\xe2\x80\x9d test\nwithout ruling on whether the plurality test could be utilized in other cases. Two circuits\nhave held that the \xe2\x80\x9csignificant nexus\xe2\x80\x9d test is appropriate and the plurality test is not, and two\n141\n\n\x0ccircuits have resolved their cases without deciding which test should be used to determine\njurisdiction.\nThe following chart outlines the split in jurisdictions:\nTest\nKennedy or Plurality\n\nCircuits\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nKennedy / Silent on Plurality\n\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nKennedy Only\n\n\xef\x82\xb7\n\xef\x82\xb7\n\nResolved Without Choosing\n\n\xef\x82\xb7\n\xef\x82\xb7\n\n1st Circuit: United States v. Johnson, 467\nF.3d 56 (1st Cir. 2006)\n3rd Circuit: United States v. Donovan, 661\nF.3d 174 (3d Cir. 2011)\n8th Circuit: United States v. Bailey, 571 F.3d\n791 (8th Cir. 2009)\n4th Circuit: Precon Development Corp. v.\nCorps, 633 F.3d 278 (4th Cir. 2011)\n7th Circuit: United States v. Gerke\nExcavating, Inc., 464 F.3d 723 (7th Cir.\n2006)\n9th Circuit: Northern California River Watch\nv. City of Healdsburg, 496 F.3d 993 (9th Cir.\n2007)\n11th Circuit: United States v. Robison, 505\nF.3d 1208 (11th Cir. 2007)\n2nd Circuit: Cordiano v. Metacon Gun Club ,\nInc. 575 F.3d 199 (2d Cir. 2009)\n5th Circuit: United States v. Lucas, 516 F.3d\n316 (5th Cir. 2008)\n6th Circuit: United States v. Cundiff, 555 F.3d\n200 (6th Cir. 2009)\n\nTwo trends are clear from those decisions. First, the appellate courts generally agree that if\na water satisfies Justice Kennedy\xe2\x80\x99s \xe2\x80\x9csignificant nexus\xe2\x80\x9d test, it can be regulated as a \xe2\x80\x9cwater\nof the United States.\xe2\x80\x9d Second, none of the appellate courts have found that the Rapanos\nplurality test is a sufficient test, in and of itself, to determine jurisdiction.\n\n142\n\n\x0c3.\n\n2011 Guidance and 2015 Rulemaking\n\nWhile Courts have generally upheld the government\xe2\x80\x99s exercise of jurisdiction under Justice\nKennedy\xe2\x80\x99s \xe2\x80\x9csignificant nexus\xe2\x80\x9d test, the test is time consuming and resource intensive, and\nimplementation of the test on a case-by-case basis led to reductions in the scope of waters\ncovered under the Clean Water Act. After the Rapanos decision, the Corps and EPA still\npreferred to assert jurisdiction broadly over categories of waters rather than making the\njurisdictional determination on a case by case basis. Accordingly, the agencies continued to\nexplore amending their \xe2\x80\x9cwaters of the United States\xe2\x80\x9d guidance or adopting regulations to\ndefine the term more categorically.\nIn May 2011, the Corps and EPA prepared draft guidance to replace the 2008 guidance\nand published the draft guidance in the Federal Register for public comment. See 76 Fed.\nReg. 24479 (May 2, 2011). The agencies received approximately 230,000 comments on\nthe guidance, but did not take further steps to finalize the guidance. See Environmental\nLaw Institute, The Clean Water Act Jurisdictional Handbook, 2d ed. 36 (May 2012).\nJust as legislators proposed bills to respond to the Supreme Court\xe2\x80\x99s SWANCC decision,\nlegislators introduced legislation to amend the Clean Water Act after the Rapanos decision.\nIn April 2010, Representative Oberstar introduced the America\xe2\x80\x99s Commitment to the Clean\nWater Act, which was similar to the previous Clean Water Restoration Acts, and would\nestablish broad jurisdiction over streams and wetlands. See H.R. 5088, 111th Cong. 2d\nSess. (2010). Other legislators introduced bills to restrict Clean Water Act jurisdiction or to\nlimit the Corps and EPA from finalizing the 2011 guidance or using it as the basis for a\nrulemaking. See Defense of Environment and Property Act of 2012, S. 2122, 112th Cong.,\n2d Sess. (2012), and Preserve the Waters of the United States Act, S. 2245, 112th Cong.,\n2d Sess. (2012). Like the post-SWANCC legislation, though, none of the post-Rapanos bills\nwere enacted.\nIn September 2013, EPA released a draft study, Connectivity of Streams and Wetlands to\nDownstream Waters, that concluded that all tributaries, including intermittent and\nephemeral streams, of downstream rivers are physically, chemically, and biologically\nconnected to the downstream rivers. Id. at 1-3. It also found that wetlands and open waters\nin the flood plains of rivers and riparian areas are connected in the same way to\ndownstream rivers as the tributaries are connected to those rivers. Id. at 1-3. Although the\nreport did not find that isolated waters and wetlands that are outside of the floodplains of\nrivers have a similar connection to downstream rivers, it did suggest that a case-by-case\nanalysis of such wetlands and waters could determine that they have an aggregate impact\non downstream rivers. Id. at 1-4. EPA\xe2\x80\x99s Science Advisory Board then solicited public\ncomment on the proposal, and the agency indicated that the study would be the basis for a\nproposed rulemaking to clarify the meaning of \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d See United\nStates Environmental Protection Agency, Clean Water Act Definition of \xe2\x80\x9cWaters of the\nUnited States\xe2\x80\x9d, available at:\n143\n\n\x0chttp://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm\nBased on that study, which was ultimately finalized in January 2015, the Corps and EPA\nissued a notice of proposed rulemaking to re-define \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d See 79\nFed. Reg. 22188 (Apr. 21, 2014) (the \xe2\x80\x9cWOTUS\xe2\x80\x9d rule). In the proposed rule, the agencies\ndefined \xe2\x80\x9cwaters of the United States\xe2\x80\x9d to include traditional navigable waters, interstate\nwaters, the territorial seas, all impoundments of those three categories of waters, all\ntributaries of those three categories of waters and all waters, including wetlands, adjacent\nto those three categories of waters. Id. at 22262-22263. While the agencies were\ndeveloping the rule, legislators introduced bills to prevent the agencies from finalizing the\nrule. See Protecting Water and Property Rights Act of 2014, S. 2496, 113th Cong., 2d Sess.\n(2014); Waters of the United States Regulatory Overreach Protection Act, H.R. 594, 114th\nCong., 2d Sess. (2014).\nOn June 29, 2015, EPA and the Corps issued a final rule after providing a 200 day\ncomment period and receiving more than 1 million comments on the proposal.\xe2\x80\x9d See 80\nFed. Reg. 37054, 37057 (June 29, 2015). According to the agencies, the rule \xe2\x80\x9cmakes the\nprocess of identifying waters protected under the [Clean Water Act] easier to understand,\nmore predictable, and consistent with the law and peer-reviewed science.\xe2\x80\x9d Id. at 37055.\nThe Connectivity Study \xe2\x80\x9dprovided much of the technical basis\xe2\x80\x9d for the rule. Id. at 37057.\nAlthough the rule reduced the circumstances in which agencies must determine, on a caseby-case basis, that waters have a \xe2\x80\x9csignificant nexus\xe2\x80\x9d to traditional navigable waters,\ninterstate waters or the territorial seas, the \xe2\x80\x9csignificant nexus\xe2\x80\x9d standard remained an\nimportant element of the agencies\xe2\x80\x99 interpretation of the Clean Water Act. Id. at 37056. The\nagencies identified several categories of waters as \xe2\x80\x9cwaters of the United States\xe2\x80\x9d in the final\nrule because the agencies concluded that the waters, as a class, had a \xe2\x80\x9csignificant nexus\xe2\x80\x9d\nto traditional navigable waters, interstate waters or the territorial seas. By reducing the\nsituations in which the Corps and EPA must conduct case-by-case analyses, the new rule\nwas designed to make it easier for the agencies to determine that waters like those at issue\nin Rapanos were protected by the Clean Water Act. For an overview of the 2015 rule, see\nEnvironmental Law Institute, EPA\xe2\x80\x99s \xe2\x80\x9cWaters of the United States\xe2\x80\x9d Rule: Substance and\nSignificance, 45 Envtl. L. Rep. 10995 (Nov. 2015).\nThe final rule identified eight categories of waters as \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d See 33\nC.F.R. \xc2\xa7 328.3(a). The first three categories of waters have long been regulated as \xe2\x80\x9cwaters\nof the United States,\xe2\x80\x9d and include traditional navigable waters, id. \xc2\xa7 328.3(a)(1), interstate\nwaters (including interstate wetlands), id. \xc2\xa7 328.3(a)(2), and the territorial seas. Id.\n\xc2\xa7 328.3(a)(3). Any impoundments of those waters, id. \xc2\xa7 328.3(a)(4), or tributaries of those\nwaters, id. \xc2\xa7 328.3(a)(5) are also \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d The rule did not require the\nCorps or EPA to make a case-by-case determination that an impoundment or tributary of\nthose waters is a \xe2\x80\x9cwater of the United States.\xe2\x80\x9d It includes all such impoundments or\ntributaries. The rule defined a tributary as \xe2\x80\x9ca water that contributes flow, either directly or\nthrough another water ... to [a traditional navigable water, interstate water or the territorial\n144\n\n\x0cseas] that is characterized by the presence of the physical indicators of a bed and banks\nand an ordinary high water mark.\xe2\x80\x9d Id. \xc2\xa7 328.3(c)(3). Thus, the term was broad enough to\ninclude ephemeral and intermittent streams. For a useful overview of the importance of\nregulating small streams, see Dave Owens, Little Streams and Legal Transformations,\n2017 Utah L. Rev. 1.\nIn addition to those five categories of \xe2\x80\x9cwaters,\xe2\x80\x9d the rule included, as \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d, waters that are adjacent to waters within any of those five categories of waters. Id.\n\xc2\xa7 328.3(a)(6). While the prior regulation defined \xe2\x80\x9cwaters of the United States\xe2\x80\x9d to include\nwetlands that were \xe2\x80\x9cadjacent\xe2\x80\x9d to other \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d and defined\n\xe2\x80\x9cadjacent\xe2\x80\x9d to include \xe2\x80\x9cbordering, contiguous or neighboring,\xe2\x80\x9d the new rule included\n\xe2\x80\x9cadjacent\xe2\x80\x9d waters, as opposed simply to \xe2\x80\x9cadjacent\xe2\x80\x9d wetlands, and defined waters as\n\xe2\x80\x9cneighboring\xe2\x80\x9d based on the distances between those waters and specific features of other\nwaters (i.e. ordinary high water mark, 100 year floodplain, high tide line). Id. \xc2\xa7 328.3(c)(2).\nWhile the prior regulation defined \xe2\x80\x9cwaters of the United States\xe2\x80\x9d to include intrastate waters\nthe use, degradation or destruction of which could affect interstate or foreign commerce,\nthe new rule eliminates that category of \xe2\x80\x9cwaters.\xe2\x80\x9d However, some waters that may have\nbeen regulated under that \xe2\x80\x9cinterstate commerce\xe2\x80\x9d category might still have been regulated\nunder the new rule as the Corps and EPA include, in the \xe2\x80\x9cwaters of the United States\xe2\x80\x9d\ndefinition, a new category that includes prairie potholes, Carolina bays and Delmarva bays,\npocosins, Western vernal pools, and Texas coastal prairie wetlands, if those wetlands were\ndetermined, on a case-by-case basis, to have a significant nexus to a traditional navigable\nwater, interstate water, or the territorial seas. Id. \xc2\xa7 328.3(a)(7). While that decision must be\nmade on a case-by-case basis, the rule clarified that the wetland types identified in the\ncategory (prairie potholes, bays, pocosins, vernal pools, and coastal prairie wetlands) \xe2\x80\x9care\nsimilarly situated and shall be combined, for purposes of a significant nexus analysis, in the\nwatershed that drains to the nearest water...\xe2\x80\x9d Id.\nFinally, the new rule included, in the definition of \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d all waters\nlocated within the 100 year floodplain of a traditional navigable water, interstate water, or\nthe territorial seas and all waters located within 4,000 feet of the high tide line or ordinary\nhigh water mark of any of the first five categories of waters of the United States if the\nwaters are determined, on a case-by-case basis, to have a significant nexus to a traditional\nnavigable water, interstate water or the territorial seas. Id. \xc2\xa7 328.3(a)(8).\nFor purposes of making the case-by-case determination required for the final two\ncategories of \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d the rule defined \xe2\x80\x9csignificant nexus\xe2\x80\x9d to mean that\n\xe2\x80\x9ca water, including wetlands, either alone or in combination with other similarly situated\nwaters in the region, significantly affects the chemical, physical or biological integrity\xe2\x80\x9d of the\nother water. Id. \xc2\xa7 328.3(c)(5). The rule also identified aquatic functions that are relevant to\ndetermine whether a water has a \xe2\x80\x9csignificant nexus\xe2\x80\x9d to another water, including sediment\ntrapping; nutrient recycling; pollutant trapping, transformation, filtering and transport;\n145\n\n\x0cretention and attenuation of flood waters; runoff storage; contribution of flow; export of\norganic matter; export of food resource; and provision of life cycle dependant aquatic\nhabitat. Id.\nWhile the rule outlined eight categories of waters that are \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d it\nalso identified several categories of waters that are not \xe2\x80\x9cwaters of the United States,\xe2\x80\x9d\nincluding waste treatment systems, prior converted cropland, artificially irrigated areas that\nwould revert to dry land, other artificial and constructed waters and ornamental pools, as\nwell as depressions, various erosional features, puddles, groundwater, constructed\nstormwater control features, waste water recycling structures, and many types of ditches.\nId. \xc2\xa7 328.3(b). Most of those features were never regulated in the past, but the new rule\nwas the first rule to explicitly codify the exemptions.\nThe agencies predicted that the new rule would reduce the scope of jurisdiction when\ncompared to jurisdiction prior to the SWANCC decision, but could increase jurisdiction by\n2.84 - 4.65% when compared to jurisdiction after the Rapanos decision. See U.S. EPA &\nU.S. Army Corps of Engineers, Economic Analysis of the EPA-Army Clean Water Rule vii\n(May 2015). They estimated that the annual costs for the regulation would range from\n$158.6 million to $306.6 million, while the annual benefits would range from $338.9 million\nto $349.5 million. Id. at x.\n4.\n\nAftermath of 2015 Rulemaking\n\na. Legal Challenges\nWithin the first two days after the agencies published the final rule, 27 states filed lawsuits\nchallenging the rule. See Chris Marr, More Than Half States Sue EPA to Block Rule on\nWater Jurisdiction, 46 Env. Reporter 2012 (July 3, 22015). Within another two weeks, 14\nagriculture and industry groups filed lawsuits, see Amena H. Saiyid and Anthony Adragna,\nChamber of Commerce Joins in Water Rule Lawsuit, 46 Env. Reporter 2143 (July 17,\n2015). Environmental groups, on the other hand, argued that the agencies did not go far\nenough in asserting jurisdiction over waters. Some of their criticisms are outlined in Patrick\nParenteau, A Bright Line Mistake: How EPA Bungled the Clean Water Rule, 46 Envtl. L.\n379 (2016) ,Craig N. Johnston & Gerald Torres, Normal Farming and Adjacency: A Last\nMinute Gift for the Farm Bureau, 46 Envtl. L. 395 (2016) and Amena H. Saiyid, Endangered\nSpecies at Risk from Water Rule, Advocates Say, 47 Env. Reporter 4027 (Nov. 4, 2016).\nUltimately, approximately 100 parties filed 23 petitions for review of the rule in the federal\nappellate courts and 17 complaints challenging the rule in federal district courts. See\nSuzanne Murray, Mary Mendoza, and Lissette Villarruel, States Challenge Clean Water\nRule in Federal Courts, American Bar Association Section of Environment, Energy and\nResources, Water Quality and Wetlands Committee Newsletter, Vol. 14, No. 2, at 11, 12\n(Aug. 2016).\n146\n\n\x0cIn August, 2015, the U.S. District Court for the District of North Dakota issued a preliminary\ninjunction staying the rule in the 13 states that were parties to the lawsuit before that court.\nSee North Dakota v. U.S. Environmental Protection Agency, 127 F. Supp. 3d 1047 (D. N.D.\n2015). All of the appellate challenges were consolidated for review and, in October, 2015,\nthe U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule. See In\nre Environmental Protection Agency, 808 F.3d 804 (6th Cir. 2015). When the 2015 WOTUS\nrule was stayed, EPA and the Corps returned to applying the agencies\xe2\x80\x99 interpretation of\n\xe2\x80\x9cwaters of the United States\xe2\x80\x9d that was in effect before the agencies adopted the new rule.\nSince the Clean Water Act language is imprecise, most of the litigation thus far has focused\non whether the federal district courts or appellate courts have jurisdiction to review the\nagencies\xe2\x80\x99 rule. In February, 2016, the Sixth Circuit ruled that it had original jurisdiction to\nhear the challenges to the rule. See Murray Energy Corp. v. United States Department of\nDefense (In re: U.S.D.O.D.), 817 F.3d 261 (6th Cir. 2016). In November, 2016, the National\nAssociation of Manufacturers asked the Supreme Court to review the Sixth Circuit\xe2\x80\x99s\ndecision and, in January, 2017, the Court granted the petition for review. See Lars-Eric\nHedberg, Supreme Court to Decide Water Rule Challenge Venue, 48 Env. Reporter 123\n(Jan. 20, 2017). The Sixth Circuit then held its review of the rule in abeyance pending the\nSupreme Court review.\nb. Congressional Response\nAt the same time that States, regulated entities and environmental groups were challenging\nthe rule in court, Senator Joni Ernst (R-Ia.) introduced a resolution in Congress to overturn\nthe rule under the Congressional Review Act. See S.J. Res. 22, 114th Cong., 1st Sess.\n(2015). Although the resolution was passed by the House and the Senate, it was vetoed by\nPresident Obama on January 20, 2016. Id. In addition to attempting to repeal the rule under\nthe Congressional Review Act, several members of Congress asked the Government\nAccountability Office (GAO) to review the manner in which EPA used social media in the\nrulemaking process to solicit comments on the rule and the GAO issued a report finding\nthat some of the agency\xe2\x80\x99s actions violated prohibitions in federal appropriations laws\nagainst publicity, propaganda and lobbying. See U.S. Gov\xe2\x80\x99t. Accountability Office, GAO-B326944, Environmental Protection Agency \xe2\x80\x93 Application of Publicity or Propaganda and\nAnti-Lobbying Provisions (2015). The violations identified by the GAO, however, were\nminor, and did not affect the validity of the agency\xe2\x80\x99s rule. For a thorough review of the use\nof social media by EPA and opponents of the 2015 \xe2\x80\x9cwaters of the United States\xe2\x80\x9d rule in the\nrulemaking process, see Stephen M. Johnson, #Better Rules: The Appropriate Use of\nSocial Media in Rulemaking, 44 Fla. St. U. L. Rev. 1 (2017).\nc. A Change in Administration and a Change in Direction\nThe election of Donald Trump as President marked the beginning of the end for the\nagencies\xe2\x80\x99 2015 WOTUS rule. Less than two months after his inauguration, the President\n147\n\n\x0cissued Executive Order 13,778, which directs EPA to rescind or revise the WOTUS rule\nand to rescind or revise all orders, rules, guidelines or policies implementing or enforcing\nthe rule. See 80 Fed. Reg. 37,054 (June 29, 2015). The Order micro-manages to a degree\nthat is unusual for Executive Orders, in that it directs the agencies, when revising the\nWOTUS rule, to \xe2\x80\x9cconsider interpreting the term \xe2\x80\x98navigable waters\xe2\x80\x99 \xe2\x80\xa6 in a manner consistent\nwith the opinion of Justice Antonin Scalia in Rapanos v. United States.\xe2\x80\x9d Id. \xc2\xa7 3. Scalia\xe2\x80\x99s\nopinion was the plurality opinion that has not been adopted by any of the federal appellate\ncourts as the sole basis for determining jurisdiction under the Clean Water Act. In his\nstatement at the time of issuing the Order, the President indicated, \xe2\x80\x9cI\xe2\x80\x99m directing EPA to\ntake action, paving the way for the elimination of this very destructive and horrible rule.\xe2\x80\x9d\nSee President Donald Trump, Remarks by President Trump at Signing of Waters of the\nUnited States (WOTUS) Executive Order. On the same day that the President issued the\nOrder, EPA and the Corps announced their intention to review and rescind or revise the\nWOTUS rule. See 82 Fed. Reg. 12,532 (Mar. 6, 2017). In the notice, the agencies stressed\nthat revision of the rule need not be based on a change in facts or circumstances, but can\nbe based \xe2\x80\x9con a reevaluation of which policy would be better in light of the facts\xe2\x80\x9d, and the\nagencies indicated that they planned to consider interpreting \xe2\x80\x9cnavigable waters\xe2\x80\x9d in a\nrevised rule consistent with the plurality opinion in Rapanos. Id. Until the agencies adopt a\nnew rule to define \xe2\x80\x9cnavigable waters\xe2\x80\x9d, they plan to \xe2\x80\x9crecodify\xe2\x80\x9d the rule that was in place prior\nto the 2015 rule and to implement that rule and the guidance that was in place to implement\nthat rule. See U.S. Environmental Protection Agency, Waters of the United States\n(WOTUS) Rulemaking: Rulemaking Process.\nIn response to the Executive Order, the Attorney General asked the Supreme Court to hold\nthe Court\xe2\x80\x99s review of the jurisdictional question regarding the rule in abeyance while the\nagencies review and rescind or revise the rule, but the Court denied the government\xe2\x80\x99s\nrequest. See Amanda Reilly, Supreme Court to Hear WOTUS Litigation, Greenwire, Apr. 3,\n2017. When the agencies ultimately repeal or replace the rule, that action will be\nchallenged as well, so it will still be necessary to determine whether challenges should be\nbrought in federal district courts or appellate courts.\n\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nResources\nFinal \xe2\x80\x9cwaters of the United States\xe2\x80\x9d rule\nEconomic Analysis of \xe2\x80\x9cwaters of the United States rule\xe2\x80\x9d\nEPA Website for the \xe2\x80\x9cwaters of the United States\xe2\x80\x9d rule\nVideos - Clear Protection for Clean Water (EPA); That\xe2\x80\x99s Enough (\xe2\x80\x9cLet it Go\xe2\x80\x9d\nParody - Missouri Farm Bureau)\nEPA Infographic - Why Clean Water Rules\nEPA - Connectivity Study\nAnalysis of the \xe2\x80\x9cwaters of the United States\xe2\x80\x9d rule (CPR Blog)\n148\n\n\x0cInterviews\nJan Goldman Carter, Senior Manager and Counsel for the National Wildlife Federation\'s\nWetlands and Water Resources Program, discusses the importance of the Clean Water\nAct\xe2\x80\x99s \xe2\x80\x9cwaters of the United States\xe2\x80\x9d language as a foundation for wetlands protection.\n(YouTube).\n\nStephen Samuels, an Assistant Section Chief in the Environmental Defense Section of the\nEnvironment and Natural Resources Division of the U.S. DOJ, discusses the Supreme\nCourt cases interpreting the breadth of the Clean Water Act jurisdiction over "waters of the\nUnited States", the interpretive difficulties the decisions have created, and the legislative\nand regulatory efforts to clarify the breadth of jurisdiction. (YouTube).\n\n149\n\n\x0cHypotheticals\n1. Will McDonald owns a farm near Washington, Iowa. And on that farm, he has several\nprairie pothole wetlands. The nearest traditional navigable water, the Iowa River, is located\nabout 20 miles from McDonald\'s farm. The wetlands are not adjacent to any creeks,\nstreams or other watercourses. There is no evidence that the wetlands are connected by\nsurface water or groundwater to the Iowa River or any other traditional navigable water.\nHowever, every spring, thousands of pintails, mallards, and Canada geese rely on the\nwetlands (in conjunction with other wetlands in the region), for nesting and habitat on their\nnortherly migration. In addition, hundreds of birdwatchers from Illinois, Missouri and other\nstates flock to the Washington area every year to observe the annual migration. Would\nMcDonald need to obtain a Clean Water Act Section 404 permit or a Rivers and Harbors\nAct Section 10 permit from the Corps of Engineers if he wanted to fill the wetlands? Would\nyour answer be different if it could be demonstrated that the wetlands on McDonald\'s\nproperty, in conjunction with other wetlands in the region, played a vital role in preventing\nflooding of the Iowa River?\n2. Assume, instead, that the wetlands on McDonald\'s farm are not prairie pothole wetlands,\nbut are adjacent to an unnamed intermittent stream that flows for a mile into a ditch, which\nis connected, after another mile, to the South Fork of Long Creek. The South Fork of Long\nCreek flows into Long Creek, which is a tributary of the Iowa River (which is located 20\nmiles from McDonald\'s farm). The wetlands on McDonald\'s property do not have a\ncontinuous surface connection to any traditional navigable water. There is also no evidence\nof a groundwater connection between the wetlands and a traditional navigable water.\nHowever, there is evidence that the wetlands, in conjunction with other wetlands in the\nregion, play a significant role in filtering pollution and sediments that would otherwise be\ndeposited in the Iowa River. Would McDonald need to obtain a Clean Water Act Section\n404 permit or a Rivers and Harbors Act Section 10 permit to fill the wetlands on his\nproperty? Would your answer be different if it could be demonstrated that the wetlands\nprovided important habitat for snakes that were listed on the state\'s list of endangered\nspecies?\n3. Assume, finally, that McDonald lives near Burlington, Iowa and owns property adjacent to\nthe Mississippi River. There are a few acres of wetlands on his property that are adjacent to\nthe Mississippi River. Would McDonald need to obtain a Clean Water Act Section 404\npermit or a Rivers and Harbors Act Section 10 permit to fill the wetlands on his property?\n\n150\n\n\x0cChapter Quiz\nNow that you\xe2\x80\x99ve finished the material covering the federal government\xe2\x80\x99s Clean Water Act\njurisdiction over \xe2\x80\x9cnavigable waters\xe2\x80\x9d and \xe2\x80\x9cwaters of the United States\xe2\x80\x9d, why not try a CALI lesson\non the material at http://cca.li/PU. It should only take about a half hour or less.\n\n151\n\n\x0cChapter 5\nAdditions and Discharges\nI.\n\nRegulated Activities\n\nAs noted in the previous Chapter, Section 301 of the Clean Water Act regulates the\n\xe2\x80\x9cdischarge\xe2\x80\x9d of pollutants, which the statute defines to mean \xe2\x80\x9caddition\xe2\x80\x9d of a pollutant to\nnavigable waters from a point source. 33 U.S.C. \xc2\xa7 1362(12). Section 404 of the Act\nauthorizes the Corps of Engineers to issue permits for the \xe2\x80\x9cdischarge of dredged or fill\nmaterial into the navigable waters at specified disposal sites.\xe2\x80\x9d As a result, whether an\nactivity in wetlands or regulated waters is regulated under the Clean Water Act frequently\ndepends on whether it involves the addition of pollutants and on whether it involves the\ndischarge of dredged or fill material.\nThe terms \xe2\x80\x9caddition,\xe2\x80\x9d \xe2\x80\x9cdredged material,\xe2\x80\x9d \xe2\x80\x9cfill material,\xe2\x80\x9d and \xe2\x80\x9cdischarge of dredged or fill\nmaterial\xe2\x80\x9d are not defined in the Clean Water Act, but the Corps and EPA have defined most\nof them by regulation. The Corps first adopted regulations defining many of those terms in\n1977. See 42 Fed. Reg. 37,121 (July 19, 1977). In those regulations, the agency defined\ndredged material and fill material as follows:\n\n\xef\x82\xb7\nDredged material: material that is excavated or dredged from the waters\nof the United States\n\xef\x82\xb7\nFill material: any material used for the primary purpose of replacing an\naquatic area with dry land or of changing the bottom elevation of a waterbody.\nThe term does not include any pollutant discharged into the water primarily to\ndispose of waste, as that activity is regulated under Section 402 * * *\n\nId. While the definition of \xe2\x80\x9cdredged material\xe2\x80\x9d was simply tied to the nature of the material,\nthe definition of \xe2\x80\x9cfill material\xe2\x80\x9d was tied to the purpose for which the material was being\nused. The regulations also included a definition of \xe2\x80\x9cdischarge of dredged material\xe2\x80\x9d\n(\xe2\x80\x9caddition of dredged material into the waters of the United States\xe2\x80\x9d) and a definition of\n\xe2\x80\x9cdischarge of fill material\xe2\x80\x9d (\xe2\x80\x9caddition of fill material into the waters of the United States\xe2\x80\x9d), but\n152\n\n\x0cneither was particularly illuminating. Id. The regulations did not define \xe2\x80\x9caddition.\xe2\x80\x9d\nThe regulations that EPA adopted in 1980 included a similar definition of \xe2\x80\x9cdredged\nmaterial,\xe2\x80\x9d but they defined \xe2\x80\x9cfill material\xe2\x80\x9d as: \xe2\x80\x9cany \xe2\x80\x98pollutant\xe2\x80\x99 which replaces portions of the\n\xe2\x80\x98waters of the United States\xe2\x80\x99 with dry land or which changes the bottom elevation of a water\nbody for any purpose.\xe2\x80\x9d See 45 Fed. Reg. 33290, 33421 (May 19, 1980). Thus, the EPA\ndefinition of \xe2\x80\x9cfill material\xe2\x80\x9d was not tied to the purpose for which a material was used, but\nrather the effect of the use of the material. For many years, the EPA and Corps regulatory\ndefinitions of \xe2\x80\x9cfill material\xe2\x80\x9d diverged in that manner.\nSince 2002, however, the Corps and EPA have defined the terms \xe2\x80\x9cdredged material\xe2\x80\x9d and\n\xe2\x80\x9cfill material\xe2\x80\x9d consistently in their regulations. The current regulatory definitions of the terms\nare:\n\n\xef\x82\xb7\nDredged material: material that is excavated or dredged from waters of\nthe United States.\n\xef\x82\xb7\nFill material: material placed in waters of the United States where the\nmaterial has the effect of: (i) Replacing any portion of a water of the United\nStates with dry land; or (ii) Changing the bottom elevation of any portion of a\nwater of the United States. * * *\n\n33 C.F.R. \xc2\xa7 323.2 (Corps\xe2\x80\x99 regulations); 40 C.F.R. \xc2\xa7 232.2 (EPA\xe2\x80\x99s regulations). Both\nagencies also include a non-exclusive list of materials that constitute \xe2\x80\x9cfill material\xe2\x80\x9d within\ntheir definition of the term. The list includes \xe2\x80\x9crock, sand, soil, clay, plastics, construction\ndebris, wood chips, overburden from mining or other excavation activities, and materials\nused to create any structure or infrastructure in the waters of the United States.\xe2\x80\x9d Id.\nThe evolution of the definitions of \xe2\x80\x9cdredged material,\xe2\x80\x9d \xe2\x80\x9cfill material,\xe2\x80\x9d \xe2\x80\x9cdischarge of dredged\nmaterial,\xe2\x80\x9d and \xe2\x80\x9cdischarge of fill material\xe2\x80\x9d are discussed at length in the sections that follow.\nHowever, neither agency has defined \xe2\x80\x9caddition\xe2\x80\x9d by regulation.\n\n153\n\n\x0cHypothetical\nEllen Marshall is an attorney who specializes in real estate development and she represents\nStewart Griffith, a shopping mall developer. While meeting with Griffith last week to review a\ncontract to purchase property in Wilmington, Delaware, she learned that Griffith had instructed\nsome of the contractors who were building a mall for him on property near Dover, Delaware to\nfill in an acre of coastal wetlands without seeking a permit from the Corps of Engineers. Griffith\ntold Marshall that the contractors had found several Black Rail nests in the wetlands. Since\nBlack Rails are an endangered bird, Griffith was sure that the Corps of Engineers would never\nissue him a permit for the development if he applied for one, so he thought it would be best to\nfill in the wetlands and hope no one found out about it. Marshall encouraged Griffith to tell the\nCorps about his actions and to apply for an after the fact permit, but he refused and told her\nthat he would take his chances, because he didn\xe2\x80\x99t think anyone other than the contractors\nknew that the wetlands had been filled. Marshall believes that Griffith will be subject to much\nmore stringent penalties if the Corps discovers the violation independently than if Griffith\nreports the violation to the Corps. Marshall is also concerned because there are only a few\nBlack Rails left in Delaware and Griffith\xe2\x80\x99s action destroyed vital habitat for the birds. If Griffith\nreports the violation and creates, restores or enhances wetlands in the vicinity of the mall\ndevelopment in Dover, the birds have a better chance for survival.\nCan Marshall notify the Corps about Griffith\xe2\x80\x99s illegal filling activities if Griffin does not want to\nreport the violation? See American Bar Association, Model Rule of Professional Conduct 1.6\n(and associated comments). Would your answer be different if the filling significantly increased\nthe likelihood that a hospice near the mall in Dover would be flooded in the event of a hurricane\nor major tropical storm in the region?\n\n154\n\n\x0cA.\n\nLandclearing\n\nBecause neither the statute nor agency regulations define \xe2\x80\x9caddition\xe2\x80\x9d, there has been\nsignificant litigation regarding whether certain activities constitute the \xe2\x80\x9caddition\xe2\x80\x9d of a\npollutant. One question that has arisen frequently concerns whether there is an \xe2\x80\x9caddition\xe2\x80\x9d of\na pollutant when a material is removed from wetlands or other waters of the United States\nand then replaced within the same waters. This issue arose shortly after the enactment of\nthe 1977 amendments to the Clean Water Act in the context of landclearing. If a person\ncuts down trees or vegetation in a wetland or other water in order to clear the land, and\nsome of those trees or vegetation are disposed of in the wetlands or water, has there been\nan \xe2\x80\x9caddition\xe2\x80\x9d of a pollutant, even though the trees and vegetation were in the wetland or\nwater at the outset of the landclearing activities? The following case explores that issue.\n\nPhoto 25 Photo by Nigel Corby\nhttp://commons.wikipedia.org/wiki/File%3AHarversting_timber_near_Wood_-_geograph.org.uk__1012869.jpg [CC BY SA 2.0]\n\n155\n\n\x0cAvoyelles Sportsmen\xe2\x80\x99s League, Inc.\nv. Marsh\n\nResources for the Case\nEDF Website (plaintiffs)\nUnedited opinion (From Justia)\nEPA\xe2\x80\x99s JD for the property\nGoogle Map of all the cases in the coursebook\n\n715 F.2d 897 (5th Cir. 1983)\nRANDALL, Circuit Judge:\n\nThis is an appeal from a district court judgment\nthat enjoined the private defendants1 from any\nadditional clearing, except by permit under 33 U.S.C. \xc2\xa7 1344 (Supp. V 1981), of certain\nlands determined by the district court to be wetlands. The federal defendants2 contend that\nthe district court should have reviewed the Environmental Protection Agency\'s ("EPA") final\nwetlands determination (attached as an appendix to this opinion) on the basis of the\nadministrative record, and that the court erred in adopting its own wetlands determination\ninstead of reviewing the agency\'s determination under the arbitrary and capricious\nstandard. The federal defendants also dispute the district court\'s conclusion that the mere\nremoval of vegetation from wetlands constitutes a discharge of a pollutant under section\n301(a) of the Clean Water Act ("CWA"), 33 U.S.C. \xc2\xa7 1311(a) (1976). * * * The private\ndefendants contest the validity of the district court\'s determination that approximately ninety\npercent of their land is a wetland, as well as the court\'s conclusion that their landclearing\nactivities fall under the CWA\'s prohibition on the discharge of pollutants into waters of the\nUnited States.\nFor the reasons set forth below, to the extent that the district court\'s decision that ninety\npercent of the Lake Long Tract is a wetland is inconsistent with the EPA\'s determination,\nthe decision of the district court is reversed. The court\'s determination that the private\ndefendants\' actual landclearing activities require permits is affirmed.\nFACTUAL AND PROCEDURAL BACKGROUND\nThis case concerns an approximately 20,000 acre tract of land (the "Lake Long Tract") in\nAvoyelles Parish, Louisiana. The tract lies within the Bayou Natchitoches basin, an area of\napproximately 140,000 acres, which, along with the Ouachita, Black and Tensas river\nbasins, makes up the Red River backwater area. The Bayou Natchitoches basin is subject\nto flooding during the spring months, and it experiences an average rainfall of sixty inches\nper year.\n1\n\nThe private defendants are the owners of the land that is the subject of this litigation.\n***\n2\n\nThe federal defendants are United States Army Corps of Engineers and Environmental\nProtection Agency officials. * * *\n156\n\n\x0cMuch of the basin had been cleared of forest before the private defendants began their\nlandclearing activities, but 80,000 acres were still forested. The Lake Long Tract made up a\nquarter of this forested area. The topography of the tract itself is uneven, resulting in some\nareas with permanent water impoundments and other drier areas that support a variety of\nplant species.\nThe private defendants own the Lake Long Tract. They decided that the land could be put\nto agricultural use, specifically soybean production. Consequently, they began a program of\nlarge-scale deforestation in June of 1978. * * * Using bulldozers with shearing blades that\n"floated" along the ground, the defendants cut the timber and vegetation at or just above\nground level. The trees were then raked into windrows, burned, and the stumps and ashes\nwere disced into the ground by other machinery. The shearing and raking caused some\nleveling of the tract, and the defendants dug one drainage ditch.\nOn August 25, 1978, the Vicksburg District of the Army Corps of Engineers ordered\ndefendant Prevot to halt his activities pending a wetlands determination by the Corps.\nThereafter, Dr. Donald G. Rhodes, an expert consultant employed by the Corps, undertook\na comprehensive vegetative mapping of the Lake Long Tract and determined that thirty-five\npercent of it was a wetland. In October, 1978, the Fish and Wildlife Service wrote a letter to\nthe Corps stating that the Service believed that the entire tract was a wetland. After Dr.\nRhodes had made his determination, the landowners resumed their activities on the portion\nof the tract that the Corps had not designated as a wetland.\nOn November 8, 1978, the plaintiffs5 brought this citizens\' suit * * * against a number of\nCorps and EPA officials, as well as against the private landowners. The plaintiffs claimed,\ninter alia, that the landclearing activities would result in the discharge of dredged and fill\nmaterial into the waters of the United States in violation of sections 301(a) and 404 of the\nCWA, * * * and also result in the discharge of pollutants into the waters of the United States\nin violation of section 402 of the CWA, * * * The plaintiffs requested a declaration that the\ntract was a wetland within the scope of the CWA, * * * that the private defendants could not\nengage in their landclearing activities without obtaining a permit from the EPA or the Corps,\nand that the federal defendants had failed to exercise their "mandatory duty" * * * to\ndesignate the tract a wetland and to order the private defendants to cease and desist from\ndischarging pollutants and dredged materials. The plaintiffs also sought injunctive relief\nagainst the federal defendants to require them to exercise their jurisdiction over the\nproperty and to issue cease-and-desist orders until the private defendants obtained the\nrequisite permits. The district court immediately issued a temporary restraining order,\npreventing the private defendants from engaging in landclearing activities pending the\ncourt\'s action on the plaintiffs\' motion for a preliminary injunction.\n5\n\nThe plaintiffs are a number of environmental groups and one interested individual.\n***\n157\n\n\x0cOn January 17, 1979, the district court granted the plaintiffs\' motion for a preliminary\ninjunction and ordered the federal defendants to prepare a final wetlands determination\nwithin sixty days. All of the private parties were to have the opportunity to participate in the\nadministrative proceedings, and the federal defendants were to file a preliminary report\nwithin forty-five days. The court allowed the private defendants to engage in normal\ncultivation on the more than 10,000 acres that had been cleared, but ordered them to apply\nfor a permit with respect to the area already designated by the government as a wetland\nand enjoined them for sixty days from engaging [*903] in landclearing activities on the\nremainder of the tract.\nThe parties complied with the court\'s preliminary order, and the EPA submitted its final\nwetlands determination on March 26, 1979. * * * After examining the vegetation, soil\nconditions, and hydrology of the tract, the EPA concluded that approximately eighty percent\nof the land was a wetland. In a brief final paragraph, the EPA also offered its views of the\ntypes of activities that would require a section 404 permit.\nAt the private defendants\' request, the district court agreed to bifurcate the consideration of\nthe two major issues in the case: (1) how much of the Lake Long Tract was a wetland, and\n(2) which activities required a section 404 permit. After extensive trials on both issues, the\ncourt decided that a section 404 permit was required for the landclearing activities and that\nover ninety percent of the Lake Long Tract was a wetland. * * * The court then enjoined the\nprivate defendants from engaging in any additional landclearing activities, without a section\n404 permit, on the land that the court had determined to be a wetland, other than the land\nalready cleared. The defendants timely appealed.\n***\n[In Part II of the opinion, the court concluded that the district court used the wrong standard\nto review EPA\xe2\x80\x99s determination regarding the extent of wetlands on the private defendants\xe2\x80\x99\nproperty. The court held that the district court substituted its judgment for the agency and\nreviewed the determination de novo, when the court should have accorded deference to\nthe agency\xe2\x80\x99s determination and upheld it as long as it was not arbitrary or capricious.\nHowever, instead of remanding the case to the district court to allow that court to review\nEPA\xe2\x80\x99s determination under the proper standard, the appellate court reviewed it and upheld\nthe agency\xe2\x80\x99s finding that eighty percent of the private defendants\xe2\x80\x99 property was wetlands on\nthe grounds that the agency\xe2\x80\x99s determination was not arbitrary or capricious. The court also\nrejected claims that the agency\xe2\x80\x99s regulations asserting jurisdiction over wetlands exceeded\nthe agency\xe2\x80\x99s authority under the Clean Water Act and that Congress unconstitutionally\ndelegated legislative power to the agency in the Act.]\n***\n\n158\n\n\x0cIII.\n\nACTIVITIES REQUIRING A PERMIT\n\n[The court began Part III by indicating that the court would uphold the district court\xe2\x80\x99s factual\nfindings unless they were clearly erroneous. After describing the evidence presented\nbelow, the court concluded that it could not find on the basis of the record that the district\ncourt\xe2\x80\x99s factual findings were clearly erroneous. The major factual findings were summarized\nat the beginning of this opinion.] * * *\nB.\n\nThe Discharge of Pollutants\n\nThe district court held that the private defendants\' landclearing activities constituted a\n"discharge of a pollutant" into the waters of the United States, and that engaging in those\nactivities without a section 404 dredge-and-fill permit was a violation of Section 301(a) of\nthe CWA. * * * As the district court did, we must look beyond section 301(a) itself, to the\nstatutory and regulatory definitions, in order to determine whether the district court\'s holding\nwas correct.\nSection 502(12) defines the term "discharge of a pollutant" as "(a) any addition of any\npollutant to navigable waters from any point source ...." * * * The question in this case is\nwhether the landclearing activities were (1) a discharge (2) of a pollutant (3) from a point\nsource (4) into navigable waters. Further, we must determine whether the activities were\n"normal agricultural activities" exempted from the permit requirements by 33 U.S.C.\n\xc2\xa7 1344(f).\nAs discussed in Part II, these activities did occur in navigable waters, as that term is\ndefined in the statute. Further, we agree with the district court that the bulldozers and\nbackhoes were "point sources," since they collected into windrows and piles material that\nmay ultimately have found its way back into the waters. * * * The question then is whether\nthese activities constituted a "discharge" of a "pollutant."\nEmphasizing that the removal of all of the vegetation would destroy the vital ecological\nfunction of the wetlands, the district court concluded that the landclearing activities\nconstituted a "discharge" within the meaning of the CWA. Both the federal and private\ndefendants argue that the "mere removal" of wetlands vegetation was not a discharge\nbecause the term discharge is defined as the "addition" of pollutants, not the removal of\nmaterials. The district court rejected this argument as "untenable" because it believed that\nthe federal defendants\' interpretation would frustrate the ecological purposes of the CWA.\n* * * In the court\'s view, the federal defendants\' argument implied that "the excavation of\n[a] ditch 6 feet deep and 100 feet long requires a \xc2\xa7 404 permit (is destructive of wetlands)\nbut that the clearing of 20,000 acres of forest wetlands by methods involving only de\nminimis movement of earth does not (is not destructive of wetlands)." * * *\nA brief analysis of the district court\'s factual findings indicates that the dispute about\n159\n\n\x0cwhether the CWA covers the mere removal of vegetation is a false issue in this case. The\nEPA has explained on appeal that it agrees with the district court that "if vegetation or other\nmaterials are redeposited in the wetland, that activity is a discharge. [Their] point of\ndisagreement with the district court was with its apparent conclusion that removal activities\n[were] covered by the Act even when nothing is redeposited on the land." Federal\nDefendants\' Reply Brief at 2 n.140 The district court\'s factual findings demonstrate that this\nis not a "mere removal" case. The court found that "during the clearing process small\nsloughs were filled in and larger ones partially filled thereby levelling the land." * * * The\nlandowners\' own witness admitted to burying logs in holes that he had dug, and the\nplaintiffs\' witnesses testified that material that would not burn was buried. Since the\nlandclearing activities involved the redeposit of materials, rather than their mere removal,\nwe need not determine today whether mere removal may constitute a discharge under the\nCWA.241 Any suggestion made by the district court that the term "discharge" does cover\nremoval is pure dicta.\nThe word "addition", as used in the definition of the term "discharge," may reasonably be\nunderstood to include "redeposit." As the district court recognized, this reading of the\ndefinition is consistent with both the purposes and legislative history of the statute. The\nCWA was designed to "restore and maintain the chemical, physical and biological integrity\nof the Nation\'s waters," 33 U.S.C. \xc2\xa7 1251(a), and as discussed in Part II, the legislative\nhistory indicates that Congress recognized the importance of protecting wetlands as a\nmeans of reaching the statutory goals. * * * There is ample evidence in the record to\nsupport the district court\'s conclusion that the landowners\' redepositing activities would\nsignificantly alter the character of the wetlands and limit the vital ecological functions\nserved by the tract. * * * Since we have concluded that the term "discharge" covers the\nredepositing of materials taken from the wetlands, we hold that the district court correctly\ndecided that the landclearing activities on the Lake Long Tract constituted a discharge\nwithin the meaning of the Act.43\n40\n\nAfter persistent questioning at oral argument, the federal defendants explained further\nthat, in their view, if the vegetation was cut down without significant disturbance of the soil\nand then removed to dry land, no permit would be required. They further explained that, in\ntheir view, if the vegetation were cut down and put back into the wetlands soil, however,\nthen there would have been a redeposit in the wetland, and hence a discharge.\n41\n\nIt is equally clear from the record that the activities in this case did not involve a "de\nminimis" disturbance; hence we have no reason to determine whether de minimis\ndisturbances are exempted from the Act. * * *\n43\n\nIn National Wildlife, supra, the EPA argued that an activity was a discharge requiring a\n\xc2\xa7 402 permit only if materials were introduced into the water "from the outside world." 693\nF.2d at 165. No one has urged here that the materials must come from an external source\nin order to constitute a discharge necessitating a \xc2\xa7 404 permit, nor would we expect them\n160\n\n\x0cSimilarly, we agree with the district court, the plaintiffs and the federal defendants that the\nmaterial discharged in this case was "fill," if not "dredged," material and hence subject to\nthe Corps\' regulation under section 404, as long as the activities did not fall within the\nsection 404(f) exemption. The term "fill material" is defined in the Corps\' regulations as:\nany material used for the primary purpose of replacing an aquatic area with dry land\nor of changing the bottom elevation of a waterbody. The term does not include any\npollutant discharged into the water primarily to dispose of waste, as that activity is\nregulated under Section 402 of the Federal Water Pollution Control Act\nAmendments of 1972.\n33 C.F.R. \xc2\xa7 323.2(m). The regulations define the "discharge of fill material" as:\nthe addition of fill material into waters of the United States. The term generally\nincludes, without limitation, the following activities: Placement of fill that is necessary\nto the construction of any structure in a water of the United States; the building of\nany structure or impoundment requiring rock, sand, dirt, or other material for its\nconstruction; site-development fills for recreational, industrial, commercial,\nresidential, and other uses; causeways or road fills; dams and dikes; artificial\nislands; property protection and/or reclamation devices such as riprap, groins,\nseawalls, breakwaters, and revetments; beach nourishment; levees; fill for\nstructures such as sewage treatment facilities, intake and outfall pipes associated\nwith power plants and subaqueous utility lines; and artificial reefs. The term does not\ninclude plowing, cultivating, seeding and harvesting for the production of food, fiber,\nand forest products.\n33 C.F.R. \xc2\xa7 323.2(n).\nAs discussed above, the burying of the unburned material, as well as the discing, had the\neffect of filling in the sloughs on the tract and leveling the land. The landowners insist that\nany leveling was "incidental" to their clearing activities and therefore the material was not\ndeposited for the "primary purpose" of changing the character of the land. The district court\nfound, however, that there had been significant leveling. The plaintiffs\' witnesses testified\nthat sloughs that had contained rainwater in the past had been filled in; thus, the activities\nwere "changing the bottom elevation of the waterbody." Certainly, the activities were\ndesigned to "replace the aquatic area with dry land." Accordingly, we hold that the district\ncourt correctly concluded that the landowners were discharging "fill material" into the\nto, since \xc2\xa7 404 refers to "dredged" or "fill" material. As discussed infra, "dredged" material is\nby definition material that comes from the water itself. A requirement that all pollutants must\ncome from outside sources would effectively remove the dredge-and-fill provision from the\nstatute. * * *\n161\n\n\x0cwetlands.\nThe district court also found that removal of the vegetation constituted dredging. The\nregulations define "dredged material" as "material that is excavated or dredged from waters\nof the United States." 33 C.F.R. \xc2\xa7 323.2(k). The district court reasoned that since the\nvegetation was part of the wetlands, it was also part of the "waters of the United States;"\ntherefore, removal of the vegetation constituted dredging.\nThe landowners emphasize that dredging is "excavation." They argue that the vegetation is\na wetland indicator, not a part of the wetland itself; therefore, the removal of the vegetation\nfrom the surface of the wetland is not "dredging." The federal defendants agree with the\nlandowners that the removal of vegetation from above ground is not dredging, but they do\nnot view this as a crucial issue in this case because they agree with the district court that\nthe landowners were discharging "fill material." * * * We note that there was testimony that\nthe landowners\' activities included the digging of ditches and holes, which would constitute\n"dredging" even under the landowners\' interpretation of the regulation. Like the federal\ndefendants, however, we do not believe that a decision whether there was a discharge of\ndredged material is necessary here, since we have concluded that there was a discharge of\nfill material.\n***\n[The court then determined that the defendants\xe2\x80\x99 activities were not exempt from the permit\nrequirements of Section 404 as \xe2\x80\x9cnormal farming operations.\xe2\x80\x9d]\n***\nV.\n\nCONCLUSION\n***\n\nWith respect to the activities at issue, we hold: * * *\n(2) that in filling in the sloughs and leveling the land, the landowners were\nredepositing fill material into waters of the United States, and that therefore, [*930]\nthese activities constituted a \xe2\x80\x98discharge of a pollutant,\xe2\x80\x99 * * *\nAccordingly, we affirm the district court\'s judgment that these landclearing activities may not\nbe carried out without a section 404 dredge-and-fill permit; however, we note that should a\nsection 404 permit application be filed, the Corps will be free to apply its expertise to that\npermit determination without any constraint from the district court\'s injunctive\ndeterminations except those we have expressly affirmed.\n\n162\n\n\x0cQuestions and Comments\n1.\n\nThis was not a government enforcement action. Who sued? What was the\n\xe2\x80\x9cmandatory duty\xe2\x80\x9d that the government failed to perform? Does the government have\na duty to bring enforcement actions whenever a person violates the Clean Water\nAct? Government enforcement and citizen suits will be explored more fully in\nChapter 10.\n\n2.\n\nDoes the court rely on the plain meaning of the term \xe2\x80\x9caddition\xe2\x80\x9d to conclude that the\nredeposit of material in the wetlands constitutes an \xe2\x80\x9caddition?\xe2\x80\x9d On what tools of\nstatutory interpretation did the court rely to reach that determination?\n\n3.\n\nAlthough the court found that the trees and vegetation in this case met the\nregulatory definition of \xe2\x80\x9cfill material,\xe2\x80\x9d the same appellate court concluded that trees\nand vegetation that would be cut and left in wetlands to facilitate the construction of\na electricity transmission line were not \xe2\x80\x9cfill material\xe2\x80\x9d because the wetlands would\nremain wetlands at the end of the project and would not be converted. See Save\nOur Wetlands v. Sands, 711 F.2d 634 (5th Cir. 1983).\n\n4.\n\nAt the time of this lawsuit, the Corps still defined \xe2\x80\x9cfill material\xe2\x80\x9d based on the purpose\nfor which the material was used. Was that important in this case? Would the court\nhave reached a different determination if the Corps defined \xe2\x80\x9cfill material\xe2\x80\x9d, as they do\ntoday, to include material that has the effect of replacing any portion of a water of\nthe United States with dry land or changing the bottom elevation of any portion of a\nwater of the United States?\n\n5.\n\nThe court does not determine whether the trees and vegetation constitute \xe2\x80\x9cdredged\nmaterial\xe2\x80\x9d because the court concludes that they are \xe2\x80\x9cfill material.\xe2\x80\x9d Note, though, that\nthe court suggests that the term \xe2\x80\x9caddition\xe2\x80\x9d must include some redeposit of materials\ninto waters, since the statute authorizes the Corps to issue permits for the discharge\nof \xe2\x80\x9cdredged material,\xe2\x80\x9d which \xe2\x80\x9cis by definition material that comes from the water\nitself.\xe2\x80\x9d See infra, n.43.\n\n6.\n\nIf the landowner could have cleared the land without redepositing any of the trees or\nvegetation in the wetlands, would that activity have been regulated as an \xe2\x80\x9caddition\xe2\x80\x9d\nof a pollutant under the court\xe2\x80\x99s opinion? What if the activity involved only the\nredeposit of a small amount of vegetation or other material?\n\n7.\n\nNote the difference between the Corps\xe2\x80\x99 delineation of the wetlands on the property\n(35%), EPAs\xe2\x80\x99 (80%), and the district court\xe2\x80\x99s (90%). If all were relying on the same\ndelineation manual, why was there such a disparity in results?\n\n8.\n\nThe Rest of the Story: The controversy underlying the Avoyelles litigation is\n163\n\n\x0crecounted in detail in Oliver A. Houck, Rescuing Ophelia: Avoyelles Sportsmen\'s\nLeague and the Bottomland Hardwoods Controversy, 81 Miss. L.J. 1473 (2012).\nPost-script: In light of the court\xe2\x80\x99s decision in Avoyelles, the Corps issued a Regulatory\nGuidance Letter, RGL 85-04, that indicated that the Corps would apply the approach taken\nby the Fifth Circuit on a national level and would require 404 permits for landclearing\nactivities with mechanized equipment if \xe2\x80\x9cthe activity would involve burying logs or burying\nburn residue, or totally or partially filling in sloughs or low areas, or leveling the land.\xe2\x80\x9d See\nRegulatory Guidance Letter 85-04, Avoyelles \xc2\xb6 2 (March 29, 1985). The RGL also provided\nthat sidecasting of materials from the construction of ditches would require a permit. Id.\nWith regard to some of the questions that the Avoyelles court did not address, the Corps\xe2\x80\x99\nRGL provided that a 404 permit would not be required for the mere removal of vegetation\nfrom wetlands or waters, id. \xc2\xb6 5, and that a 404 permit would not be required if the\nlandclearing only involved a de minimis discharge of dredged or fill material. Id. \xc2\xb6 4. The\nRGL also clarified that a permit would not be required for the felling of a tree, piling of trees,\nbrush and stumps (which don\xe2\x80\x99t totally or partially fill in sloughs or level the land), filling in\nstump holes, or many types of discing, plowing or raking the soil surface in regulated\nwaters. Id. \xc2\xb6 6.\nHowever, five years later, the Corps issued another Regulatory Guidance Letter, RGL 9005, in which the agency indicated that \xe2\x80\x9cit is our position that mechanized land-clearing\nactivities in jurisdictional wetlands result in a redisposition of soil that is subject to regulation\nunder section 404.\xe2\x80\x9d See Regulatory Guidance Letter 90-05, Landclearing Activities Subject\nto Section 404 Jurisdiction, \xc2\xb6 2 (July 18, 1990). The guidance indicated that some limited\nexceptions might occur, \xe2\x80\x9csuch as cutting trees above the soil\xe2\x80\x99s surface with a chain saw.\xe2\x80\x9d\nId. Today, the Corps regulates landclearing activities fairly broadly, in part due to changes\nin the regulatory definition of \xe2\x80\x9cdischarge of dredged material\xe2\x80\x9d, which will be discussed in the\nnext section.\nB.\n\nDitching, Draining and Dredging\n\nWhile the Clean Water Act 404 permit requirement is triggered by the \xe2\x80\x9cdischarge of\ndredged or fill material\xe2\x80\x9d into \xe2\x80\x9cwaters of the United States\xe2\x80\x9d, \xe2\x80\x9cdraining\xe2\x80\x9d a wetland, by pumping\nout the water, constructing ditches outside of the wetlands to drain the water, or otherwise,\ndoes not require a permit unless the draining activity involves a \xe2\x80\x9cdischarge of dredged or fill\nmaterial\xe2\x80\x9d into the wetland. See Save Our Community v. EPA, 971 F.2d 1155 (5th Cir. 1992).\nHowever, draining activities frequently involve \xe2\x80\x9cdischarges of dredged or fill material,\xe2\x80\x9d and\nwhen they do, they require a 404 permit.\nIn addition, since 1990, the Corps has taken the position that wetlands that are subject to\n404 jurisdiction and are drained remain subject to 404 jurisdiction even after they are\ndrained, and a permit will be required for any subsequent filling activities on the converted\nwetlands. See Memorandum from Lance Wood to All Division and District Counsels,\n164\n\n\x0cEvading 404 Jurisdiction by Pumping Water from Wetlands (Apr. 10, 1990). Since the\nCorps and EPA define \xe2\x80\x9cwetlands\xe2\x80\x9d as areas that \xe2\x80\x9cunder normal circumstances\xe2\x80\x9d support\nwetland vegetation, the Corps has taken the position that wetlands that are drained remain\nsubject to jurisdiction because, \xe2\x80\x9cunder normal circumstances\xe2\x80\x9d (i.e., if they had not been\ndrained), they would support wetland vegetation. Id. This reduces the incentive for\nlandowners to drain the wetlands, since the ultimate development activity will still require a\npermit even though the draining may not.\n\nPhoto 26 By U.S. Army Corps of Engineers from USA\nhttp://commons.wikimedia.org/wiki/File%3ADredge_Bill_Holman_works_for_Army_Corps_of_Engineers_a\nt_McAlpine_Locks%2C_Louisville%252 [CC-BY-2.0]\n\n\xe2\x80\x9cDredging,\xe2\x80\x9d like \xe2\x80\x9cdraining,\xe2\x80\x9d does not require a Section 404 permit unless there is some\ndischarge (addition of a pollutant) into the \xe2\x80\x9cwaters of the United States\xe2\x80\x9d associated with the\ndredging. The act of \xe2\x80\x9cdredging\xe2\x80\x9d is generally regulated under the Rivers and Harbors Act,\nand similar laws. However, dredging in wetlands and other waters of the United States will\nalmost always involve some incidental redeposit of dredged material in the waters during\nthe dredging process. The Corps\xe2\x80\x99 regulation of that material has evolved over the years.\nIn a 1986 rulemaking defining \xe2\x80\x9cdischarge of dredged material,\xe2\x80\x9d the Corps noted that the\nmaterial that \xe2\x80\x9cincidentally\xe2\x80\x9d falls back into the water during the dredging process is\nconsidered a \xe2\x80\x9cde minimis\xe2\x80\x9d discharge and does not require a permit. See 51 Fed. Reg.\n165\n\n\x0c41206, 41210 (Nov. 13, 1986). The regulation adopted at the time excluded \xe2\x80\x9cde minimis,\nincidental soil movement occurring during normal dredging operations.\xe2\x80\x9d Id. at 41232. The\nagency indicated that if it regulated the fallback, \xe2\x80\x9cwe would, in effect, be adding the\nregulation of dredging to section 404 which we do not believe was the intent of Congress.\xe2\x80\x9d\nId. at 41210.\nThe Corps changed its policy several years later in response to a lawsuit. In 1992, the\nNorth Carolina Wildlife Federation sued the Corps of Engineers and Colonel Walter Tulloch,\nthe District Engineer for the Corps\xe2\x80\x99 Wilmington District, because the Corps did not require a\nlandowner to apply for a section 404 permit when the landowner ditched and drained\nwetlands to convert them and build a housing development. See North Carolina Wildlife\nFederation, et al. v. Tulloch, E.D.N.C. C90-713-CIV-5-BO (E.D. N.C. 1992). Since the\nditching and draining only involved de minimis discharges of material into the wetlands, the\nCorps had declined to require the developer to obtain a 404 permit. Id. In order to settle the\nlawsuit, EPA and the Corps agreed to propose a revision and clarification of the definition\nof \xe2\x80\x9cdredged or fill material.\xe2\x80\x9d See 58 Fed. Reg. 45007, 45008 (Aug. 25, 1993).\nThe Tulloch Rule: The regulations that the Corps and EPA adopted broadly defined\n\xe2\x80\x9cdischarge of dredged or fill material\xe2\x80\x9d to mean \xe2\x80\x9cany addition, including any redeposit, of\ndredged material within the United States.\xe2\x80\x9d Id. at 45,035. The regulations also indicated\nthat the term included \xe2\x80\x9cany addition, including redeposit, of dredged material, into waters of\nthe United States which is incidental to any activity, including mechanized landclearing,\nditching, channelization and other excavation.\xe2\x80\x9d Id. At the same time, though, the regulations\nprovided that a permit was not required for \xe2\x80\x9cany incidental addition, including redeposit, of\ndredged material associated with any activity that does not have or would not have the\neffect of destroying or degrading an area of waters of the United States,\xe2\x80\x9d provided that the\nperson undertaking the activity demonstrated to the Corps or EPA, before undertaking the\nactivity, that it would not destroy or degrade an area of waters of the United States.\xe2\x80\x9d Id. In\neffect, therefore, incidental fallback would be regulated unless a developer could\ndemonstrate that the fallback would not harm the wetlands or waters of the United States.\nThe rulemaking that the agencies issued to settle the lawsuit became known as \xe2\x80\x9cthe\nTulloch Rule\xe2\x80\x9d (in reference to Colonel Tulloch, the defendant in the lawsuit).\nThe \xe2\x80\x9cTulloch Rule\xe2\x80\x9d generated controversy and was challenged, and struck down, in the\nfollowing case:\n\nNational Mining Association v.\nU.S. Army Corps of Engineers\n145 F.3d 1399 (D.C. Cir. 1998)\nWILLIAMS, Circuit Judge:\n\nResources for the Case\n33 C.F.R. 323.2 (1994) (incorp.Tulloch rule)\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\nNMA website\n\n166\n\n\x0c* * * In 1986 the Corps issued a regulation defining the term "discharge of dredged\nmaterial," as used in \xc2\xa7 404, to mean "any addition of dredged material into the waters of the\nUnited States," but expressly excluding "de minimis, incidental soil movement occurring\nduring normal dredging operations." * * * In 1993, responding to litigation, the Corps issued\na new rule removing the de minimis exception and expanding the definition of discharge to\ncover "any addition of dredged material into, including any redeposit of dredged material\nwithin, the waters of the United States." 33 C.F.R. \xc2\xa7 323.2(d)(1) (emphasis added).\nRedeposit occurs when material removed from the water is returned to it; when redeposit\ntakes place in substantially the same spot as the initial removal, the parties refer to it as\n"fallback." In effect the new rule subjects to federal regulation virtually all excavation and\ndredging performed in wetlands.\nThe plaintiffs, various trade associations whose members engage in dredging and\nexcavation, mounted a facial challenge to the 1993 regulation, claiming that it exceeded the\nscope of the Corps\'s regulatory authority under the Act by regulating fallback. The district\ncourt agreed and granted summary judgment for the plaintiffs. American Mining Congress\nv. United States Army Corps of Engineers, 951 F. Supp. 267 (D.D.C.1997). The district\ncourt also entered an injunction prohibiting the Corps and the Environmental Protection\nAgency, who jointly administer \xc2\xa7 404, from enforcing the regulation anywhere in the United\nStates. Id. at 278. We affirm.\n***\nAs mentioned above, the Tulloch Rule alters the preexisting regulatory framework primarily\nby removing the de minimis exception and by adding coverage of incidental fallback.\nSpecifically, the rule defines "discharge of dredged material" to include "[a]ny addition,\nincluding any redeposit, of dredged material, including excavated material, into waters of\nthe United States which is incidental to any activity, including mechanized landclearing,\nditching, channelization, or other excavation." 33 C.F.R. \xc2\xa7 323.2(d)(1)(iii) (emphasis\nadded).3\n***\nIt is undisputed that by requiring a permit for "any redeposit," 33 C.F.R. \xc2\xa7 323.2(d)(1)(iii)\n(emphasis added), the Tulloch Rule covers incidental fallback. According to the agencies,\nincidental fallback occurs, for example, during dredging, "when a bucket used to excavate\nmaterial from the bottom of a river, stream, or wetland is raised and soils or sediments fall\nfrom the bucket back into the water." Agencies Br. at 13 (There is no indication that the rule\nwould not also reach soils or sediments falling out of the bucket even before it emerged\nfrom the water.) Fallback and other redeposits also occur during mechanized landclearing,\n3\n\nEPA promulgated a parallel rule, which is codified at 40 C.F.R. \xc2\xa7 232.2(1)(iii).\n167\n\n\x0cwhen bulldozers and loaders scrape or displace wetland soil, * * * as well as during ditching\nand channelization, when draglines or backhoes are dragged through soils and sediments.\n* * * Indeed, fallback is a practically inescapable by-product of all these activities. In the\npreamble to the Tulloch Rule the Corps noted that "it is virtually impossible to conduct\nmechanized landclearing, ditching, channelization or excavation in waters of the United\nStates without causing incidental redeposition of dredged material (however small or\ntemporary) in the process." * * * As a result, the Tulloch Rule effectively requires a permit\nfor all those activities, subject to a limited exception for ones that the Corps in its discretion\ndeems to produce no adverse effects on waters of the United States.\nThe plaintiffs claim that the Tulloch Rule exceeds the Corps\'s statutory jurisdiction under\n\xc2\xa7 404, which, as we have noted, extends only to "discharge," defined as the "addition of\nany pollutant to navigable waters." 33 U.S.C. \xc2\xa7\xc2\xa7 1344, 1362(12). It argues that fallback,\nwhich returns dredged material virtually to the spot from which it came, cannot be said to\nconstitute an addition of anything. Therefore, the plaintiffs contend, the Tulloch Rule\nconflicts with the statute\'s unambiguous terms and cannot survive even the deferential\nscrutiny called for by Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).\n***\nThe agencies argue that the terms of the Act in fact demonstrate that fallback may be\nclassified as a discharge. The Act defines a discharge as the addition of any pollutant to\nnavigable waters, 33 U.S.C. \xc2\xa7 1362(12), and defines "pollutant" to include "dredged spoil,"\nas well as "rock," "sand," and "cellar dirt." Id. \xc2\xa7 1362(6). The Corps in turn defines "dredged\nmaterial" as "material that is excavated or dredged from waters of the United States," 33\nC.F.R. \xc2\xa7 323.2(c), a definition that is not challenged here. Thus, according to the agencies,\nwetland soil, sediment, debris or other material in the waters of the United States\nundergoes a legal metamorphosis during the dredging process, becoming a "pollutant" for\npurposes of the Act. If a portion of the material being dredged then falls back into the water,\nthere has been an addition of a pollutant to the waters of the United States. Indeed,\naccording to appellants National Wildlife Federation et al. ("NWF"), who intervened as\ndefendants below, this reasoning demonstrates that regulation of redeposit is actually\nrequired by the Act.\nWe agree with the plaintiffs, and with the district court, that the straightforward statutory\nterm "addition" cannot reasonably be said to encompass the situation in which material is\nremoved from the waters of the United States and a small portion of it happens to fall back.\nBecause incidental fallback represents a net withdrawal, not an addition, of material, it\ncannot be a discharge. As we concluded recently in a related context, "the nearest\nevidence we have of definitional intent by Congress reflects, as might be expected, that the\nword \'discharge\' contemplates the addition, not the withdrawal, of a substance or\nsubstances." North Carolina v. FERC, 112 F.3d 1175, 1187 (D.C. Cir.1997). The agencies\'\nprimary counterargument--that fallback constitutes an "addition of any pollutant" because\n168\n\n\x0cmaterial becomes a pollutant only upon being dredged--is ingenious but unconvincing.\nRegardless of any legal metamorphosis that may occur at the moment of dredging, we fail\nto see how there can be an addition of dredged material when there is no addition of\nmaterial. Although the Act includes "dredged spoil" in its list of pollutants, 33 U.S.C.\n\xc2\xa7 1362(6), Congress could not have contemplated that the attempted removal of 100 tons\nof that substance could constitute an addition simply because only 99 tons of it were\nactually taken away. * * *\nIn fact the removal of material from the waters of the United States, as opposed to the\ndischarge of material into those waters, is governed by a completely independent statutory\nscheme. Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. \xc2\xa7 403, makes it\nillegal "to excavate or fill" in the navigable waters of the United States without the Corps\'s\napproval. As the general counsel of the Army noted in a law review article published a few\nyears after the passage of the Clean Water Act, Congress enacted "two separate statutory\nframeworks. Section 10 of the 1899 Act covers the act of dredging, while Section 404 [of\nthe Clean Water Act] covers the disposal of the dredged material." * * *\nThe agencies, though acknowledging that the Tulloch Rule effectively requires a permit for\nall mechanized landclearing, ditching, channelization or excavation in waters of the United\nStates, * * * locate their permitting requirement under \xc2\xa7 404, not under the Rivers and\nHarbors Act\'s explicit coverage of "excavat[ion]." The explanation for this choice is\napparently that the scope of the Corps\'s geographic jurisdiction is narrower under the\nRivers and Harbors Act than under the Clean Water Act, extending only to waters subject to\nthe ebb and flow of the tide, or waters that are used, have been used, or may be\nsusceptible for use to transport interstate or foreign commerce. 33 C.F.R. \xc2\xa7 329.4; see also\nid. \xc2\xa7 328.1 (noting difference between geographic jurisdiction under the two statutes).\nThere may be an incongruity in Congress\'s assignment of extraction activities to a statute\n(the Rivers and Harbors Act) with a narrower jurisdictional sweep than that of the statute\ncovering discharges (the Clean Water Act). This incongruity, of course, could be cured\neither by narrowing the jurisdictional reach of the Clean Water Act or broadening that of the\nRivers and Harbors Act. But we do not think the agencies can do it simply by declaring that\nincomplete removal constitutes addition.\n***\nNWF complains that our understanding of "addition" reads the regulation of dredged\nmaterial out of the statute. They correctly note that since dredged material comes from the\nwaters of the United States, 33 C.F.R. \xc2\xa7 323.2(c), any discharge of such material into those\nwaters could technically be described as a "redeposit," at least on a broad construction of\nthat term. The Fifth Circuit made a similar observation fifteen years ago: " \'[D]redged\'\nmaterial is by definition material that comes from the water itself. A requirement that all\npollutants must come from outside sources would effectively remove the dredge-and-fill\n169\n\n\x0cprovision from the statute." Avoyelles Sportsmen\'s League v. Marsh, 715 F.2d 897, 924\nn.43 (5th Cir. 1983). But we do not hold that the Corps may not legally regulate some forms\nof redeposit under its \xc2\xa7 404 permitting authority.6 We hold only that by asserting jurisdiction\nover "any redeposit," including incidental fallback, the Tulloch Rule outruns the Corps\'s\nstatutory authority. Since the Act sets out no bright line between incidental fallback on the\none hand and regulable redeposits on the other, a reasoned attempt by the agencies to\ndraw such a line would merit considerable deference. Cf. Dubois v. U.S. Dep\'t of\nAgriculture, 102 F.3d 1273, 1296-99 (1st Cir. 1996) (although movement of pollutants\nwithin the same body of water might not constitute an "addition" for purposes of NPDES\npermit requirement, movement from one body of water to a separate one with different\nwater quality is an addition). But the Tulloch Rule makes no effort to draw such a line, and\nindeed its overriding purpose appears to be to expand the Corps\'s permitting authority to\nencompass incidental fallback and, as a result, a wide range of activities that cannot\nremotely be said to "add" anything to the waters of the United States.\n***\nIn a press release accompanying the adoption of the Tulloch Rule, the White House\nannounced: "Congress should amend the Clean Water Act to make it consistent with the\nagencies\' rulemaking." * * * While remarkable in its candor, the announcement contained a\nkernel of truth. If the agencies and NWF believe that the Clean Water Act inadequately\nprotects wetlands and other natural resources by insisting upon the presence of an\n"addition" to trigger permit requirements, the appropriate body to turn to is Congress.\nWithout such an amendment, the Act simply will not accommodate the Tulloch Rule. The\njudgment of the district court is\nAffirmed.\nSILBERMAN, Circuit Judge, concurring:\nI join the opinion of the court and write separately only to make explicit what I think implicit\nin our opinion. We hold that the Corps\'s interpretation of the phrase "addition of any\npollutant to navigable waters" to cover incidental fallback is "unreasonable," which is the\nformulation we use when we have first determined under Chevron that neither the statutory\nlanguage nor legislative history reveals a precise intent with respect to the issue presented-in other words, we are at the second step of the now-familiar Chevron Step I and Step II\nanalysis. See, e.g., Whitecliff, Inc. v. Shalala, 20 F.3d 488 (D.C. Cir.1994); Fedway\nAssociates, Inc. v. United States Treasury, 976 F.2d 1416 (D.C. Cir.1992); Abbott Labs. v.\nYoung, 920 F.2d 984 (D.C. Cir.1990); Associated Gas Distribs. v. FERC, 899 F.2d 1250\n(D.C. Cir.1990). As our opinion\'s discussion of prior cases indicates, the word addition\n6\n\nEven the plaintiffs concede that under a broad reading of the term "redeposit," "a\nredeposit could be an addition to [a] new location and thus a discharge." Plaintiffs\' Br. at 17.\n170\n\n\x0ccarries both a temporal and geographic ambiguity. If the material that would otherwise fall\nback were moved some distance away and then dropped, it very well might constitute an\n"addition." Or if it were held for some time and then dropped back in the same spot, it might\nalso constitute an "addition." But the structure of the relevant statutes indicates that it is\nunreasonable to call incidental fallback an addition. To do so perforce converts all\ndredging--which is regulated under the Rivers and Harbors Act--into discharge of dredged\nmaterial which is regulated under the Clean Water Act.\nMoreover, that Congress had in mind either a temporal or geographic separation between\nexcavation and disposal is suggested by its requirement that dredged material be\ndischarged at "specified disposal sites," 33 U.S.C. \xc2\xa7 1344 (1994), a term which simply does\nnot fit incidental fallback.\n***\nQuestions and Comments\n1.\n\nDid this lawsuit arise in the context of an enforcement action? Had the Corps\napplied the Tulloch rule to require members of the National Mining Association to\nobtain permits for the incidental fallback during mining activities? If not, why was\nthere no problem with standing or ripeness of the challenge? Chapter 3\n(Administrative Law) and Chapter 10 (Administrative Appeals, Enforcement and\nJudicial Review) will examine questions like this in more detail.\n\n2.\n\nDoes the court resolve the case at Chevron step one or two? Is the statutory\nlanguage clear?\n\n3.\n\nWhat impact, if any, does the court\xe2\x80\x99s opinion, have on the Corps\xe2\x80\x99 regulation of \xe2\x80\x9cfill\nmaterial\xe2\x80\x9d under the Clean Water Act?\n\n4.\n\nThe court appears to leave open the possibility that the Corps can require a Section\n404 permit for some redeposit of material that occurs during dredging in wetlands\nand waters of the United States. In what circumstances might it be appropriate to\nrequire a permit? Is that inconsistent with the majority\xe2\x80\x99s statement that incidental\nfallback cannot be a discharge because it \xe2\x80\x9crepresents a net withdrawal, not an\naddition, of material\xe2\x80\x9d?\n\n5.\n\nIf, as the court notes, dredging activities are already regulated under the Rivers and\nHarbors Act, why didn\xe2\x80\x99t the Corps rely on its Rivers and Harbors Act authority to\nprotect wetlands?\n\n6.\n\nTake a moment to review the APA\xe2\x80\x99s standards for judicial review of agency action,\nparticularly 5 U.S.C. \xc2\xa7 706(2)(C). What do you think about the White House\xe2\x80\x99s press\n171\n\n\x0crelease in light of those standards?\nPost-script: In the wake of the D.C. Circuit\xe2\x80\x99s ruling, thousands of acres of wetlands were\nditched and converted to other uses. See Carl H. Herschner, Tulloch Drilling, Wetlands\nTechnical Report 99-4 (Virginia Institute of Marine Science, May 1999). The Virginia\nInstitute of Marine Science at the College of William and Mary estimated that 12,000 acres\nof wetlands in North Carolina and Virginia alone were converted through \xe2\x80\x9cTulloch ditching\xe2\x80\x9d\nin the year after the decision. Id. In an attempt to limit those impacts, the agencies, in a\n1999 rulemaking, interpreted the National Mining Association decision narrowly to prohibit\nthe regulation of \xe2\x80\x9cincidental fallback,\xe2\x80\x9d but to allow regulation of other redeposit of material in\nwaters of the United States. See 64 Fed. Reg. 25120 (May 10, 1999).\nTulloch II: Only two years later, the agencies amended their regulations and to clarify the\ndefinition of \xe2\x80\x9cdischarge of dredged material.\xe2\x80\x9d The regulations that the agencies adopted in\n2001 defined \xe2\x80\x9cdischarge of dredged material\xe2\x80\x9d as \xe2\x80\x9cany addition of dredged material into,\nincluding any redeposit of dredged material other than incidental fallback within, the waters\nof the United States.\xe2\x80\x9d See 66 Fed. Reg. 4550 (Jan. 17, 2001). The agencies defined\n\xe2\x80\x9cincidental fallback\xe2\x80\x9d as \xe2\x80\x9cthe redeposit of small volumes of dredged material that is incidental\nto excavation activity in waters of the United States when such material falls back in\nsubstantially the same place as the initial removal.\xe2\x80\x9d (emphasis added). Id.\nMore controversially, though, the agencies included a presumption in the rule that \xe2\x80\x9cthe use\nof mechanized earth-moving equipment to conduct landclearing, ditching, channelization,\ninstream mining or other earth-moving activity in waters of the United States\xe2\x80\x9d results in a\ndischarge of dredged material \xe2\x80\x9cunless project-specific evidence shows that the activity\nresults in only incidental fallback. Id. Those regulations (\xe2\x80\x9cTulloch II\xe2\x80\x9d) were codified at 33\nC.F.R. \xc2\xa7 323.2 (2002).\nNot surprisingly, the regulations generated more controversy and the National Association\nof Home Builders and several other industry trade organizations challenged the rule as\nexceeding the Corps\xe2\x80\x99 authority under the Clean Water Act, the APA, and the Tenth\nAmendment of the Constitution. See National Association of Home Builders v. U.S. Army\nCorps of Engineers, No. 01-0274, 2007 U.S. Dist. LEXIS 6366 (D.D.C. 2007). In 2007, the\nUnited States District Court for the District of Columbia held that the agency\xe2\x80\x99s definition of\n\xe2\x80\x9cincidental fallback\xe2\x80\x9d was invalid and enjoined the agency from enforcing and applying that\ndefinition. Id. at *15. The court held that the Corps should have defined \xe2\x80\x9cincidental fallback\xe2\x80\x9d\nin terms of the amount of time that material was removed from waters, in addition to the\nlocation where it was replaced, and that the agency should not have defined it with respect\nto the volume of the material being removed. Id. at *11-*13. In light of the court\xe2\x80\x99s decision,\nEPA and the Corps re-adopted the definition of \xe2\x80\x9cdischarge of dredged material\xe2\x80\x9d that they\nadopted in 1999, which did not include a definition for \xe2\x80\x9cincidental fallback\xe2\x80\x9d or the\npresumption that the use of mechanized earth moving equipment results in a discharge of\ndredged material. See 73 Fed. Reg. 79641 (Dec. 30, 2008). The current definition is\n172\n\n\x0ccodified at 33 C.F.R. \xc2\xa7 323.2 (2013).\n\nInterview\nJan Goldman Carter, Senior Manager and Counsel for the National Wildlife\nFederation\'s Wetlands and Water Resources Program, discusses the Tulloch\nlitigation (in which she was involved) and the aftermath of the litigation. (YouTube).\n\nC.\n\nSidecasting\n\nThe National Mining Association\ndecision\nfocused\non\nthe\nincidental redeposit of material in\nwetlands in the same place and\nat the same time as it is being\nremoved from the wetlands.\nHowever, it is quite common,\nduring ditching or dredging\nactivities, to remove material\nfrom a wetland or water of the\nUnited States and place it in a\ndifferent location within the same\nwetland or water of the United\nStates. As noted above, the\nPhoto 27 Corps of Engineers Photo\nCorps\nhas\nconsistently http://www.saw.usace.army.mil/Missions/Navigation/Dredging/Dist\ninterpreted that activity, which is rictPlantDredging/Merritt.aspx\nknown as sidecasting, to\nconstitute a \xe2\x80\x9cdischarge\xe2\x80\x9d or \xe2\x80\x9caddition\xe2\x80\x9d of material (dredged or fill), which requires a Section\n404 permit. See, e.g. Regulatory Guidance Letter 85-04, Avoyelles \xc2\xb6 2 (March 29, 1985). In\n1997, a divided panel of the United States Court of Appeals for the Fourth Circuit could not\nreach consensus on whether \xe2\x80\x9csidecasting\xe2\x80\x9d required a Section 404 permit. See United\nStates v. Wilson, 133 F.3d 251 (4th Cir. 1997). However, three years later, a different panel\nof the Fourth Circuit concluded that \xe2\x80\x9csidecasting\xe2\x80\x9d requires a 404 permit in the United States\nv. Deaton case, which follows.\n\n173\n\n\x0cUnited States v. Deaton\n\nResources for the Case\n\n209 F.3d 331 (4th Cir. 2000)\n\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\n\nMICHAEL, Circuit Judge:\n\nThe United States sued James and Rebecca Deaton, alleging that they violated \xc2\xa7\xc2\xa7 301 and\n404 of the Clean Water Act, * * * by sidecasting dredged material as they dug a drainage\nditch through a wetland. The district court ultimately awarded summary judgment to the\nDeatons, and the government appeals. We reverse, holding that sidecasting in a\njurisdictional wetland is the discharge of a pollutant under the Clean Water Act. We dismiss\nthe Deatons\' cross-appeal for lack of appellate jurisdiction.\nI\nOn November 22, 1988, James Deaton signed a contract to buy a twelve-acre parcel of\nland in Wicomico County, Maryland, subject to the condition that it was suitable for\ndeveloping a small residential subdivision. Deaton immediately applied to the Wicomico\nCounty Health Department for a sewage disposal permit for a five-lot "single family\nsubdivision." The Health Department denied the permit on April 26, 1989, because the\ngroundwater elevations were unacceptably high at the disposal sites proposed by Deaton\nand his consultant. The department commented that "[t]he majority of the parcel... is very\npoorly drained and would severely restrict the function of the onsite sewage disposal\nsystems." There was a "very limited area" that might warrant evaluation, the department\nsaid, if it proved to be within the property boundary. In late April 1989, after the permit was\ndenied, Deaton contacted the U.S. Department of Agriculture, Soil Conservation Service\n(SCS), to discuss the wetness problem on the twelve-acre parcel. Deaton was referred to\nGlen Richardson, who agreed to examine the site. According to Deaton, Richardson\nsuggested that the problem could be corrected by digging a ditch through the middle of the\nproperty. Deaton and his wife (Rebecca) decided to go ahead with the purchase of the\nland, and title was transferred to them in June 1989.\nBefore any ditching work began, the property was also inspected by Michael Sigrist, District\nConservationist at the SCS in Wicomico County. Deaton and Sigrist walked over the\nproperty together, and Deaton told Sigrist that he wanted to dig a large ditch to drain the\narea. Sigrist saw hydric soils (which are typical of wetland areas), areas of standing water,\n"a large, low wet area" in the center of the parcel, and non-tidal wetlands. Water was\nflowing from the property into a culvert that connects to (or is part of) Perdue Creek. (The\nwaters of Perdue Creek end up in the Wicomico River, a tributary of the Chesapeake Bay.)\nSigrist advised Deaton that a large portion of his property contained non-tidal wetlands and\nthat he would need a permit from the U.S. Army Corps of Engineers (the Corps) before\n174\n\n\x0cundertaking any ditching work. Deaton ignored Sigrist\'s advice and hired a contractor to dig\na drainage ditch across the property. Using a back hoe, a front-end track loader, and a\nbulldozer, the contractor dug a 1,240 foot ditch that intersected the areas that Sigrist had\nidentified as wetlands. As he dug, the contractor piled the excavated dirt on either side of\nthe ditch, a practice known as sidecasting.\nIn July 1990 the Corps learned of possible Clean Water Act violations on the Deaton\nproperty. A Corps ecologist, Alex Dolgos, inspected the site and concluded that it contained\nwetlands, that those wetlands were "waters of the United States" under the Clean Water\nAct, and that the ditching and fill work that had taken place required a permit. On August 7\nand 8, 1990, the Corps issued stop-work orders to Deaton and his contractor, warning them\nthat their placement of fill material in a non-tidal wetland violated \xc2\xa7 404 of the Clean Water\nAct, * * * and that no further work should be done without a permit. Deaton filed a joint state\nand federal application in December 1990, seeking permits to ditch and fill wetlands in\norder to construct an eighteen-lot subdivision. That application was returned as incomplete\non February 15, 1991, and was never resubmitted. Over the next three years Deaton\nengaged several consultants to inspect the property, negotiate with the Corps, and prepare\na remediation plan. No remediation ever took place, however, and on July 21, 1995, the\ngovernment filed a civil complaint alleging that the Deatons had violated the Clean Water\nAct by discharging fill material (the dirt excavated from the ditch) into a regulated wetland.\n***\n[In the district court, both parties moved for summary judgment. The court initially granted\npartial summary judgment to the government, holding that sidecasting into wetlands on the\nproperty was the \xe2\x80\x9cdischarge of a pollutant.\xe2\x80\x9d However, while the litigation in the district court\ncontinued, the 4th Circuit issued the United States v. Wilson decision described above.\nAlthough there was no majority holding in that case regarding whether sidecasting is\nregulated under Section 404, the district court vacated its prior determination that\nsidecasting was the \xe2\x80\x9cdischarge of a pollutant\xe2\x80\x99 and granted summary judgment for the\nDeatons. The government then appealed.] * * *\nII.\nThe Clean Water Act prohibits the discharge, without a permit, of any pollutant into\n\xe2\x80\x9cnavigable waters.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7\xc2\xa7 1311(a), 1362(6), (7), (12). * * *\nThe Corps argues and we assume for purposes of this appeal that the Deatons\' property\ncontains wetlands that are subject to the Clean Water Act. The narrow issue before us\ntoday is whether sidecasting (that is, the deposit of dredged or excavated material from a\nwetland back into that same wetland) constitutes the discharge of a pollutant under the\nClean Water Act. We hold that it does.\n\n175\n\n\x0cThe Clean Water Act defines "discharge of a pollutant" to mean "any addition of any\npollutant to navigable waters from any point source." 33 U.S.C. \xc2\xa7 1362(12)(A). The\ndefinition of pollutant, in turn, specifically includes "dredged spoil" that has been\n"discharged into water." Id. \xc2\xa7 1362(6). The piles of dirt dredged up by the Deatons\'\ncontractor were, without question, "pollutants" within the meaning of the Act. See Wilson,\n133 F.3d at 259 (op. of Niemeyer, J.) ("[D]redged materials, including the native soils\nexcavated by ditching activities, may constitute a pollutant within the meaning of the Clean\nWater Act."); id. at 269, 274 & n.12 (op. of Payne, J.) (dredged earth is a pollutant). This\nconclusion, instead of resolving the dispute, merely brings us to its center because the\nparties disagree fundamentally about what it means to "discharge... a pollutant" into the\nwaters of the United States.\nThe Deatons seize on the word "addition" in the phrase "addition of any pollutant" in the\nstatutory definition of discharge. 18 U.S.C. \xc2\xa7 1362(12). They argue that the "ordinary and\nnatural meaning of `addition\' means something added, i.e., the addition of something not\npreviously present." * * * Thus, according to the Deatons, no pollutant is discharged unless\nthere is an "introduction of new material into the area, or an increase in the amount of a\ntype of material which is already present." Wilson, 133 F.3d at 259 (op. of Niemeyer, J.).\nBecause sidecasting results in no net increase in the amount of material present in the\nwetland, the Deatons argue, it does not involve the "addition" (or discharge) of a pollutant.\nSee National Mining Ass\'n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1404 (D.C.\nCir. 1998) ("[W]e fail to see how there can be an addition of dredged material when there is\nno addition of material."). We are not convinced by this argument.\nContrary to what the Deatons suggest, the statute does not prohibit the addition of material;\nit prohibits "the addition of any pollutant." The idea that there could be an addition of a\npollutant without an addition of material seems to us entirely unremarkable, at least when\nan activity transforms some material from a nonpollutant into a pollutant, as occurred here.\nIn the course of digging a ditch across the Deaton property, the contractor removed earth\nand vegetable matter from the wetland. Once it was removed, that material became\n"dredged spoil," a statutory pollutant and a type of material that up until then was not\npresent on the Deaton property. It is of no consequence that what is now dredged spoil was\npreviously present on the same property in the less threatening form of dirt and vegetation\nin an undisturbed state. What is important is that once that material was excavated from the\nwetland, its redeposit in that same wetland added a pollutant where none had been before.\nSee 33 U.S.C. \xc2\xa7 1362 (6), (12). Thus, even under the definition of "addition" (that is,\n"something added") offered by the Deatons, sidecasting adds a pollutant that was not\npresent before.\nAlthough we conclude that the Clean Water Act\'s definition of discharge and its use of the\nterm "addition" are unambiguous, the underlying rationale for defining dredged spoil as a\npollutant provides further support for our conclusion. In deciding to classify dredged spoil as\na pollutant, Congress determined that plain dirt, once excavated from waters of the United\n176\n\n\x0cStates, could not be redeposited into those waters without causing harm to the\nenvironment. Indeed, several seemingly benign substances like rock, sand, cellar dirt, and\nbiological materials are specifically designated as pollutants under the Clean Water Act.\nSee 33 U.S.C. \xc2\xa7 1362(6). Congress had good reason to be concerned about the\nreintroduction of these materials into the waters of the United States, including the wetlands\nthat are a part of those waters.\nWetlands perform a vital role in maintaining water quality by trapping sediment and toxic\nand nontoxic pollutants before they reach streams, rivers, or other open bodies of water.\nSee Office of Technology Assessment, U.S. Congress, Wetlands: Their Use and\nRegulation 48-50 (1984). Given sufficient time, many (but not all) of these pollutants will\ndecompose, degrade, or be absorbed by wetland vegetation. See id. at 48-49. When a\nwetland is dredged, however, and the dredged spoil is redeposited in the water or wetland,\npollutants that had been trapped may be suddenly released. See id. at 49 ("Natural or\nmanmade alterations of the wetland caused by lowering the water table, dredging, and the\nlike, could mobilize large quantities of toxic materials."); id. at 124 ("A long-term effect of the\ndisposal of contaminated dredged spoil in or near wetlands is the potential bioavailability of\ntoxic chemicals such as oil and grease, pesticides, arsenic, and heavy metals, when the\nsediments are resuspended periodically."); Wilson, 133 F.3d at 273-74 (op. of Payne, J.)\n(describing how sidecasting dredged material threatens to release pollutants contained in\nsub-surface soil). At the same time, the increased drainage brought about by the dredging\nmay render the surrounding wetland unable to reabsorb and filter those pollutants and\nsediment (the very purpose of dredging is to destroy wetland characteristics). 40 C.F.R.\n\xc2\xa7 230.41(b) (explaining how discharge of dredged or fill material in wetlands "can degrade\nwater quality by obstructing circulation patterns that flush large expanses of wetland\nsystems, by interfering with the filtration function of wetlands, or by changing the aquifer\nrecharge capability of a wetland"). Even in a pristine wetland or body of water, the\ndischarge of dredged spoil, rock, sand, and biological materials threatens to increase the\namount of suspended sediment, harming aquatic life. See id.; Office of Technology\nAssessment, supra, at 48; see also Wilson, 133 F.3d at 274 (op. of Payne, J.).\nThese effects are no less harmful when the dredged spoil is redeposited in the same\nwetland from which it was excavated. The effects on hydrology and the environment are\nthe same. Surely Congress would not have used the word "addition" (in \xe2\x80\x9caddition of any\npollutant") to prohibit the discharge of dredged spoil in a wetland, while intending to prohibit\nsuch pollution only when the dredged material comes from outside the wetland. In reaching\nthis conclusion, our understanding of the word "addition" is the same as that of nearly every\nother circuit to consider the question. See Avoyelles Sportsmen\'s League, Inc. v. Marsh,\n715 F.2d 897, 923-25 (5th Cir. 1983) (interpretation of "addition" to include "redeposit" of\ntrees and vegetation dredged or excavated from the wetland itself is consistent with both\nthe purposes and legislative history of the Clean Water Act); United States v. M.C.C. of\nFlorida, Inc., 772 F.2d 1501, 1506 (11th Cir. 1985) (redeposit of spoil churned up by\ntugboat propellers constituted the discharge of a pollutant under the Clean Water Act),\n177\n\n\x0cvacated and remanded on other grounds, 481 U.S. 1034 (1987), readopted in relevant part,\n848 F.2d 1133 (11th Cir. 1988); Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir. 1990) (dirt\nand gravel extracted by gold miners and redeposited into the stream bed from which it was\nextracted constituted an "addition" of a pollutant under the Clean Water Act); see also\nUnited States v. Bay-Houston Towing Co., 33 F. Supp.2d 596, 606 (E.D. Mich. 1999)\n(adopting reasoning of Judge Payne\'s Wilson opinion). But cf. National Mining Ass\'n, 145\nF.3d at 1404, 1406 (concluding that "incidental fallback" of dredged material into waterway\ndoes not constitute the addition of a pollutant, but distinguishing between incidental fallback\nand sidecasting).\nFor these reasons, we hold that the Clean Water Act\'s definition of discharge as "any\naddition of any pollutant to navigable waters" encompasses sidecasting in a wetland. We\ntherefore reverse the district court\'s June 23, 1998, judgment to the contrary.\nQuestions and Comments\n1.\n\nTransformation: The court seems to concede that no \xe2\x80\x9cmaterial\xe2\x80\x9d is being added to\nthe wetlands in the case, but holds that \xe2\x80\x9cpollutants\xe2\x80\x9d are being added. How can\npollutants be added when no material is added?\n\n2.\n\nIs the court suggesting that sidecasting always constitutes an addition of a\npollutant? What is the basis for the court\xe2\x80\x99s determination that it is appropriate for the\nCorps to regulate sidecasting in this case? The plain meaning of the statutory\nterms? Legislative history? The purposes of the statute?\n\n3.\n\nTime and Place Matter: Although the Deatons seek to rely on the D.C. Circuit\xe2\x80\x99s\nNational Mining Association decision, what direction, if any, did that court provide\nregarding whether, or when, the Corps could regulate redeposit of material in waters\nof the United States? Did that court address the issue of sidecasting?\n\nD.\n\nDeep Ripping\n\nAnother activity that alters wetlands or other waters of the United States, but does not\ninvolve the addition of material from outside of those waters is \xe2\x80\x9cdeep ripping.\xe2\x80\x9d Deep ripping\nis a technique used to break up compacted soil, and involves dragging four to seven foot\nmetal blades through the soil. It is generally used to improve site drainage and facilitate\ndeep root growth. Like sidecasting, the activity involves only redeposit of material that was\npreviously in the waters into which it is being placed. However, because the activity can\ndestroy the hydrological integrity of wetlands, the Corps generally requires a Section 404\npermit for deep ripping. See Regulatory Guidance Letter 96-02, Applicability of Exemptions\nunder Section 404(f) to \xe2\x80\x9cDeep Ripping\xe2\x80\x9d Activities in Wetlands (Dec. 12, 1996). The United\nStates Court of Appeals for the Ninth Circuit addressed the Corps\xe2\x80\x99 authority to regulate\ndeep-ripping in the Borden Ranch Partnership v. United States Army Corps of Engineers\n178\n\n\x0ccase that follows.\nBorden Ranch Partnership v. United\nStates Army Corps of Engineers\n261 F.3d 810 (9th Cir. 2001)\n\nResources for the Case\nDeep Ripping information - from the Western\nAustralia Dept. of Agr. and Food\nDeep Ripping Videos - YouTube and Facebook\nUnedited Opinion (from Justia)\nOral Argument Audio - from the Oyez Project\nGoogle Map of all the cases in the coursebook\n\nHAWKINS, Circuit Judge:\n\nThis appeal concerns the authority of the\nU.S. Army Corpsof Engineers ("the Corps")\nand the Environmental Protection Agency\n("EPA") over a form of agricultural activity\ncalled "deep ripping" when it occurs in wetlands. We conclude that the Clean Water Act\napplies to this activity and affirm the district court\'s findings that Borden Ranch violated the\nAct by deep ripping in protected wetland swales. * * *\nFacts and Procedural Background\nIn June of 1993, Angelo Tsakopoulos, a Sacramento real estate developer, purchased\nBorden Ranch, an 8400 acre ranch located in California\'s Central Valley. Prior to\nTsakopoulos\'s purchase, the relevant areas of the ranch had been used primarily as\nrangeland for cattle grazing. The ranch contains significant hydrological features including\nvernal pools, swales, and intermittent drainages. Vernal pools are pools that form during\nthe rainy season, but are often dry in the summer. Swales are sloped wetlands that allow\nfor the movement of aquatic plant and animal life, and that filter water flows and minimize\nerosion. Intermittent drainages are streams that transport water during and after rains. All of\nthese hydrological features depend upon a dense layer of soil, called a "restrictive layer" or\n"clay pan,\xe2\x80\x9d which prevents surface water from penetrating deeply into the soil.\nTsakopoulos intended to convert the ranch into vineyards and orchards and subdivide it\ninto smaller parcels for sale. Vineyards and orchards, however, require deep root systems,\nmuch deeper than the restrictive layer in the relevant portions of Borden Ranch permitted.\nFor vineyards and orchards to grow on this land, the restrictive layer of soil would first need\nto be penetrated. This requires a procedure known as \xe2\x80\x9cdeep ripping," in which four-to\nseven-foot long metal prongs are dragged through the soil behind a tractor or a bulldozer.\nThe ripper gouges through the restrictive layer, disgorging soil that is then dragged behind\nthe ripper.\nUnder the Clean Water Act, an individual seeking to fill protected wetlands must first obtain\na permit from the Corps. Since 1993, Tsakopoulos and the Corps have disagreed about the\nCorps\' authority to regulate deep ripping in wetlands. Tsakopoulos initiated deep ripping\nwithout a permit in the fall of 1993, and the Corps granted him a retrospective permit in the\n179\n\n\x0cspring of 1994, when Tsakopoulos agreed to various mitigation requirements. In the fall of\n1994, the Corps and the EPA informed Tsakopoulos that he could deep rip in uplands and\nthat he could drive over swales with the deep ripper in its uppermost position, but that he\ncould not conduct any deep ripping activity in vernal pools. The next spring, the Corps\ndiscovered that deep ripping had occurred in protected wetlands and promptly issued a\ncease and desist order. From July 1995 through November 1995, Tsakopoulos again\ninitiated deep ripping on various parcels of land without a permit. The Corps concluded that\nmore protected wetlands had been ripped and again issued a cease and desist order.\nIn May of 1996, the Corps and the EPA entered into an Administrative Order on Consent\nwith Tsakopoulos that was intended to resolve his alleged Clean Water Act violations.\nUnder the agreement, Tsakopoulos set aside a 1368-acre preserve and agreed to refrain\nfrom further violations.\n***\nIn March of 1997 the Corps concluded that Tsakopoulos had continued to deep rip\nwetlands without permission. That April, EPA investigators visited the ranch and observed\nfully engaged deep rippers passing over jurisdictional wetlands. EPA then issued an\nAdministrative Order to Tsakopoulos.\nTsakopoulos responded by filing this lawsuit, challenging the authority of the Corps and the\nEPA to regulate deep ripping. The United States filed a counterclaim seeking injunctive\nrelief and civil penalties for Tsakopoulos\'s alleged violations of the Clean Water Act.\nBoth parties filed motions for summary judgment. The district court ruled that the Corps has\njurisdiction over deep ripping in jurisdictional waters. However, the court found disputed\nfacts with respect to whether such deep ripping had actually occurred. These facts were\nlitigated in a bench trial that began on August 24, 1999, and concluded on September 16,\n1999. The district court heard evidence from over twenty witnesses and received hundreds\nof documentary exhibits.\nThe district court subsequently entered findings of fact and conclusions of law determining\nthat Tsakopoulos had repeatedly violated the Clean Water Act. The court found 348\nseparate deep ripping violations in 29 drainages, and 10 violations in a single vernal pool.\nThe district court gave Tsakopoulos the option of paying a $1.5 million penalty or paying\n$500,000 and restoring four acres of wetlands. Tsakopoulos chose the latter option. After\ndenying a motion for more specific findings of fact, the district court entered its final order in\nfavor of the United States.\nTsakopoulos then brought this timely appeal. We have jurisdiction under 28 U.S.C.\n\xc2\xa7\xc2\xa7 1291.\n\n180\n\n\x0cAnalysis\nCorps Jurisdiction over Deep Ripping\n***\nA.\n\nDischarge of a Pollutant\n\nTsakopoulos initially contends that deep ripping cannot constitute the "addition" of a\n"pollutant\xe2\x80\x9d into wetlands, because it simply churns up soil that is already there, placing it\nback basically where it came from. This argument is inconsistent with Ninth Circuit\nprecedent and with case law from other circuits that squarely hold that redeposits of\nmaterials can constitute an "addition of a pollutant" under the Clean Water Act. Rybachek v.\nUnited States Envtl. Prot. Agency, 904 F.2d 1276 (9th Cir. 1990), considered a claim that\nplacer mining activities were exempt from the Act. We held that removing material from a\nstream bed, sifting out the gold, and returning the material to the stream bed was an\n\xe2\x80\x9caddition" of a "pollutant." Id. at 1285. The term \xe2\x80\x9cpollutant" encompassed "the materials\nsegregated from gold in placer mining." Id.\nOur reasoning in Rybachek is similar to that of the Fourth Circuit in United States v.\nDeaton, 209 F.3d 331 (4th Cir. 2000). In Deaton, a property owner alleged that the Corps\ncould not regulate "sidecasting," which is \xe2\x80\x9cthe deposit of dredged or excavated material\nfrom a wetland back into that same wetland." Id. at 334. The property owner asserted that\n"sidecasting results in no net increase in the amount of material present in the wetland" and\ntherefore could not constitute the "addition of a pollutant." Id. at 335. The Fourth Circuit\nsquarely rejected this argument, in language that is worth quoting in full:\nContrary to what the Deatons suggest, the statute does not prohibit the addition of\nmaterial; it prohibits the "addition of any pollutant." The idea that there could be an\naddition of a pollutant without an addition of material seems to us entirely\nunremarkable, at least when an activity transforms some material from a\nnonpollutant into a pollutant, as occurred here . . . . Once [earth and vegetable\nmatter] was removed [from the wetland], that material became "dredged spoil," a\nstatutory pollutant and a type of material that up until then was not present on the\nDeaton property. It is of no consequence that what is now dredged spoil was\npreviously present on the same property in the less threatening form of dirt and\nvegetation in an undisturbed state. What is important is that once that material was\nexcavated from the wetland, its redeposit in that same wetland added a pollutant\nwhere none had been before.\nId. at 335-36. As the court concluded, "Congress determined that plain dirt, once excavated\nfrom waters of the United States, could not be redeposited into those waters without\ncausing harm to the environment." Id. at 336; see also Avoyelles Sportsmen\'s League, Inc.\n181\n\n\x0cv. Marsh, 715 F.2d 897, 923 (5th Cir. 1983) (holding that the word "addition" may be\nreasonably understood to include "redeposit").\nThese cases recognize that activities that destroy the ecology of a wetland are not immune\nfrom the Clean Water Act merely because they do not involve the introduction of material\nbrought in from somewhere else. In this case, the Corps alleges that Tsakopoulos has\nessentially poked a hole in the bottom of protected wetlands. That is, by ripping up the\nbottom layer of soil, the water that was trapped can now drain out. While it is true, that in so\ndoing, no new material has been "added," a "pollutant" has certainly been "added." Prior to\nthe deep ripping, the protective layer of soil was intact, holding the wetland in place.\nAfterwards, that soil was wrenched up, moved around, and redeposited somewhere else.\nWe can see no meaningful distinction between this activity and the activities at issue in\nRybachek and Deaton. We therefore conclude that deep ripping, when undertaken in the\ncontext at issue here, can constitute a discharge of a pollutant under the Clean Water Act.2\nTsakopoulos also contends that no case has ever held a plow to be a point source, and\nthat a prohibited discharge must be from a point source. This argument has no merit. The\nstatutory definition of "point source" ("any discernible, confined, and discrete conveyance")\nis extremely broad, 33 U.S.C. \xc2\xa7\xc2\xa7 1362(14), and courts have found that \xe2\x80\x9cbulldozers and\nbackhoes" can constitute "point sources,\xe2\x80\x9d Avoyelles, 715 F.2d at 922. In this case,\nbulldozers and tractors were used to pull large metal prongs through the soil. We can think\nof no reason why this combination would not satisfy the definition of a "point source."\n[The court also concluded that the deep ripping did not fit within the \xe2\x80\x9cnormal farming\noperations\xe2\x80\x9d exemption from the 404 permit requirements because the purpose of the deep\nripping was to \xe2\x80\x9cbring an area of the navigable waters into a use to which it was not\npreviously subject.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(f)(2).]\n***\nGOULD, Circuit Judge, dissenting:\nI respectfully dissent. The crux of this case is that a farmer has plowed deeply to improve\nhis farm property to permit farming of fruit crops that require deep root systems, and are\nmore profitable than grazing or other prior farm use. Farmers have been altering and\ntransforming their crop land from the beginning of our nation, and indeed in colonial times.\n2\n\nNational Mining Assoc. v. U.S. Army Corps of Eng\'rs, 145 F.3d 1399 (D.C. Cir. 1998),\nupon which Tsakopoulos heavily relies, does not persuade us to the contrary. That case\ndistinguished "regulable redeposits" from "incidental fallback." Id. at 1405. Here, the deep\nripping does not involve mere incidental fallback, but constitutes environmental damage\nsufficient to constitute a regulable redeposit.\n182\n\n\x0cAlthough I have no doubt that Congress could have reached and regulated the farming\nactivity challenged, that does not in itself show that Congress so exercised its power. I\nconclude that the Clean Water Act does not prohibit "deep ripping" in this setting.\nI would follow and extend National Mining Association v. U.S. Army Corps of Engineers,\n145 F.3d 1399 (D.C. Cir. 1998), and hold that the return of soil in place after deep plowing\nis not a "discharge of a pollutant." In National Mining, the court held that the Corps\nexceeded its authority under section 404 of the Clean Water Act by regulating the redeposit\nof dredged materials that incidentally fall back in the course of dredging operations. The\ncourt explained that "the straightforward statutory term `addition\' cannot reasonably be said\nto encompass the situation in which material is removed from the waters of the United\nStates and a small portion of it happens to fall back." Id. at 1404. The court rejected the\nagencies\' primary argument that incidental fallback constitutes an "addition" because once\ndredged the material becomes a pollutant:\nRegardless of any legal metamorphosis that may occur at the moment of dredging,\nwe fail to see how there can be an addition of dredged material when there is no\naddition of material. Although the Act includes "dredged spoil" in its list of pollutants,\nCongress could not have contemplated that the attempted removal of 100 tons of\nthat substance could constitute an addition simply because only 99 tons of it were\nactually taken away.\nId. at 1404 (emphasis omitted).\nThose considerations are persuasive here as deep ripping does not involve any significant\nremoval or "addition" of material to the site. The ground is plowed and transformed. It is\ntrue that the hydrological regime is modified, but Congress spoke in terms of discharge or\naddition of pollutants, not in terms of change of the hydrological nature of the soil. If\nCongress intends to prohibit so natural a farm activity as plowing, and even the deep\nplowing that occurred here, Congress can and should be explicit. Although we interpret the\nprohibitions of the Clean Water Act to effectuate Congressional intent, it is an undue stretch\nfor us, absent a more clear directive from Congress, to reach and prohibit the plowing done\nhere, which seems to be a traditional form of farming activity.\nRybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9th Cir.\n1990), in my view, is distinguishable. In Rybachek, we held that placer mining, "a process\nin which miners excavate dirt and gravel in and around waterways and, after extracting the\ngold, discharge the left-over material back into the water," fell within the scope of section\n404 of the Clean Water Act. Id. at 1285. There, the Rybachek court identified the regulable\ndischarge as the discrete act of dumping leftover material into the stream after it had been\nprocessed. Id. As the concurrence in National Mining makes clear, however, "the word\naddition carries both a temporal and geographic ambiguity. If the material that would\notherwise fall back were moved some distance away and then dropped, it very well might\n183\n\n\x0cconstitute an `addition.\' Or if it were held for some time and then dropped back in the same\nspot, it might also constitute an `addition.\' \xe2\x80\x9cNational Mining, 145 F.3d at 1410 (Silberman,\nJ., concurring). Because deep ripping does not move any material to a substantially\ndifferent geographic location and does not process such material for any period of time,\nRybachek is not controlling.\nNor is the Fourth Circuit\'s opinion in United States v. Deaton, 209 F.3d 331 (4th Cir. 2000),\nrelied on by the majority, persuasive to me in the context presented. A farmer who plows\ndeeply is not, in my view, redepositing dredged or excavated materials. While the Fourth\nCircuit relied on the fact that a "dredged spoil" is a statutory pollutant, the deep plowing\nactivity here, in my view, is not the same as dredging dirt from and redepositing it in waters.\nQuestions and Comments\n1.\n\nThe majority cites the Rybacheck and Deaton cases in support of its decision. Is it\nrelevant that those cases involved redeposit of material in a different place or at a\ndifferent time? Is it important that the court suggests that the soil is \xe2\x80\x9cdragged behind\nthe ripper\xe2\x80\x9d? The dissent refers to the \xe2\x80\x9creturn of soil in place.\xe2\x80\x9d\n\n2.\n\nThe majority adopts the transformation theory that Deaton adopted and National\nMining Association rejected. Is the ruling based on the text of the statute, legislative\nhistory, or the purposes of the statute? On what does the dissent rely?\n\n3.\n\nOn appeal, Tsakopoulos argued that the Corps had relied on RGL 96-02 to\ndetermine that a permit was required for his deep ripping and that the guidance was\ninvalid because it was a substantive rule that was not adopted pursuant to notice\nand comment rulemaking. The court declined to address the issue because it was\nnot addressed below. The district court did, however, determine that it was not clear\nthat the Corps relied on the guidance in determining that a permit was required in\nthe case. If the appellate court had addressed Tskopoulos\xe2\x80\x99 challenge to RGL 96-02,\nhow might the court have ruled?\n\n184\n\n\x0c4.\n\nOn Tsakopoulos\xe2\x80\x99 petition for certiorari, the Supreme Court agreed to review the\nNinth Circuit\xe2\x80\x99s decision. Justice Kennedy, born and raised in Sacramento, California,\nwas a friend of Tsakopoulos, the Sacramento real estate developer, so Kennedy did\nnot participate in the case. Without his involvement, the Court split 4-4 and,\ntherefore, affirmed the Ninth Circuit\xe2\x80\x99s decision, which upheld the Corps\xe2\x80\x99 jurisdiction\nover deep ripping. See Borden Ranch Partnership v. Army Corps of Engineers, 537\nU.S. 99 (2002).\nHypothetical\nJeremy and Casey Wright purchased an 80 acre tract of land in northern Minnesota near the\nSaint Louis River. The Wrights planned to build a house on the property, but discovered that 60\nacres of the property were wetlands that are regulated as \xe2\x80\x9cwaters of the United States\xe2\x80\x9d under the\nClean Water Act. Rather than building the house on the 20 acres that are not wetlands, Jeremy\nrented a backhoe and dug a ditch in the wetlands located on the western portion of the property\nto drain those wetlands. Jeremy used most of the excavated material to level an upland portion\nof the property where he planned to build a garage, but he placed some of the excavated\nmaterial in the wetlands located a few acres east of the ditch. In addition, while he was digging\nthe ditch, small amounts of the soil and vegetation that he was removing from the wetlands\nspilled out of the bucket of the backhoe into the wetlands that he was draining. After he\ncompleted construction of the ditch, a consultant that he retained to delineate the wetlands on\nthe property indicated that there were only 30 acres of wetlands on the property, and that the\nwetlands were located on the portion of the property situated east of the drainage ditch. Based\non that information, Jeremy cleared 10 acres of the western portion of the property that formerly\nwere wetlands, re-graded the area, incorporating several hundred cubic yards of dirt that he\npurchased from the Minnesota Sand and Gravel Company, and built his new home on that\nportion of the property. Jeremy did not obtain a Section 404 permit for any of his activities.\nShould a permit have been required for (1) the construction of the drainage ditch; (2) the\nplacement of the excavated material in the wetlands east of the ditch; (3) the use of the\nexcavated materials to level the property for the garage; or (4) the placement of the dirt and\nconstruction of the home on the western portion of the property?\nShould a permit have been required for the construction of the drainage ditch if no soil or\nvegetation spilled out of the backhoe bucket during the construction of the ditch?\n\n185\n\n\x0cPhoto 29By JW Randolph (Friend\'s work)\nhttp://commons.wikimedia.org/wiki/File%3AMT\nR1.jpg [Public domain]\n\nPhoto 28 By Roston (Own work)\nhttp://commons.wikimedia.org/wiki/File%3AEuni\nceblast6.JPG [Public domain]\n\nPhoto 30 By Flashdark (Own work) http://commons.wikimedia.org/wiki/File%3AMartin_County_home.jpg\n[Public domain]\n\n186\n\n\x0cE.\n\nCompeting Permitting Programs - 404 versus 402 - What is Fill Material?\n\nAs noted in Chapter 4, there are two permit programs in the Clean Water Act that regulate\nthe addition of pollutants into the navigable waters. EPA administers the Section 402 permit\nprogram, which applies generally to point source discharges of pollutants into the navigable\nwaters, while the Corps administers the Section 404 permit program, which applies to\ndischarges of dredged or fill material into the navigable waters. More than 90% of the\nactivities regulated under the Section 404 permit program are authorized pursuant to\ngeneral permits and the Corps generally denies less than 1% of individual Section 404\npermit applications. See Claudia Copeland, Wetlands: An Overview of Issues,\nCongressional Research Service RL 33483 (July 12, 2010). Needless to say, EPA\xe2\x80\x99s\nSection 402 permit program is somewhat more demanding. Consequently, persons\nengaging in activities that involve addition of pollutants into navigable waters have\nfrequently argued that, if their activities are regulated at all, they involve the discharge of fill\nmaterial and require a Section 404 permit rather than a Section 402 permit.\nFor many years, this issue was central to the controversy over the regulation of\nmountaintop removal mining. Mountaintop removal mining is a surface mining practice that\ninvolves removing the tops of mountains to expose coal seams that lie below the\nmountaintops. See U.S. Environmental Protection Agency, Surface Coal Mining in\nAppalachia, available at: https://www.epa.gov/sc-mining To extract the coal, large amounts\nof rock and soil (called \xe2\x80\x9cspoils\xe2\x80\x9d) are removed from the mountain. See Claudia Copeland,\nMountaintop Mining: Background on Current Controversies, Congressional Research\nService RS21421 (Dec. 2, 2013) [hereinafter \xe2\x80\x9cCRS Mountaintop Mining Report\xe2\x80\x9d] Although\nthe Federal Surface Mining Control and Reclamation Act (SMCRA) requires mining\ncompanies to return the spoils to the mined area to return the area to its \xe2\x80\x9capproximate\noriginal contour\xe2\x80\x9d (AOC), 30 U.S.C. \xc2\xa7 1265(b)(3), it is normally impossible to do that with\nmountaintop removal mining because \xe2\x80\x9cbroken rock takes up more volume than did the rock\nprior to mining and because there are stability concerns with the spoil pile.\xe2\x80\x9d CRS\nMountaintop Mining Report, supra, at 1. SMCRA includes a provision that provides for\nwaiver of the AOC requirement in certain circumstances, though, see 30 U.S.C.\n\xc2\xa7 1265(c)(3), and, as a result, the spoils from mountaintop removal are usually placed in\n\xe2\x80\x9cvalley fills\xe2\x80\x9d on the sides of the mountains, frequently burying streams in the valley below.\nSee CRS Mountaintop Mining Report, supra, at 1. The practice became very popular in the\nAppalachian region of the United States in the 1990s. Id. Almost 1.2 million acres of land\nhave been surface mined in the Central Appalachian region and 500 mountains have been\nseverely impacted or destroyed by mountaintop mining in that region. See Appalachian\nVoices, Mountaintop Removal 101.\nResidents of the Appalachian region and environmentalists raised concerns about the\nenvironmental impacts of mountaintop mining for years and, in a recent report, EPA\nconcluded that mountaintop removal mining and valley fills have the following impacts:\n\n187\n\n\x0c(1) springs, and ephemeral, intermittent streams, and small perennial streams are permanently\nlost with the removal of the mountain and from burial under fill,\n(2) concentrations of major chemical ions are persistently elevated downstream,\n(3) degraded water quality reaches levels that are acutely lethal to standard laboratory test\norganisms,\n(4) selenium (Se) concentrations are elevated, reaching concentrations that have caused toxic\neffects in fish and birds, and\n(5) macroinvertebrate and fish communities are consistently and significantly degraded.\n\nSee U.S. Environmental Protection Agency, The Effects of Mountaintop Mines and Valley\nFills on Aquatic Ecosystems of the Central Appalachian Coalfields 1 (EPA 600/R-09/138f)\n(March 2011).\nIn the Clean Water Act context, residents of Appalachia and environmentalists argued that\nthe valley fills required Section 402 permits from EPA. The mining companies, on the other\nhand, argued that the mining spoils that were being disposed of in the streams were \xe2\x80\x9cfill\nmaterial,\xe2\x80\x9d which could be authorized by the Corps of Engineers under Section 404.\nAs noted above, for many years, EPA and the Corps relied on different regulatory\ndefinitions of \xe2\x80\x9cfill material.\xe2\x80\x9d The Corps\xe2\x80\x99 1977 regulation, which remained in place until 2002,\ndefined \xe2\x80\x9cfill material\xe2\x80\x9d as \xe2\x80\x9cany material used for the primary purpose of replacing an aquatic\narea with dry land or of changing the bottom elevation of a waterbody. The term does not\ninclude any pollutant discharged into the water primarily to dispose of waste, as that activity\nis regulated under Section 402.\xe2\x80\x9d See 42 Fed. Reg. 37,121, 37,145 (July 19, 1977). EPA\xe2\x80\x99s\nregulations, on the other hand, at least since 1980, have focused on whether materials\nhave the \xe2\x80\x9ceffect\xe2\x80\x9d of replacing water with dry land or changing the bottom elevation of water,\nregardless of the \xe2\x80\x9cpurpose\xe2\x80\x9d of the placement of the material. See 45 Fed. Reg. 33290,\n33421 (May 19, 1980). Pursuant to the Corps\xe2\x80\x99 regulations, opponents of mountaintop\nmining argued that the purpose of the valley fills was waste disposal, regulated by EPA\nunder Section 402, while the mining companies argued that the valley fills involved the\ndischarge of fill material and were regulated under Section 404. In the 1990s, when\nmountaintop removal mining was becoming increasingly popular, the Corps authorized\nmost valley fills under a general permit, Nationwide Permit 21, instead of requiring mining\ncompanies to obtain individual Section 404 permits. See 33 C.F.R. \xc2\xa7 330.5(a)(21) (1992).\nIn 1998, several environmental groups and concerned citizens sued the Corps, arguing that\nvalley fills should be regulated by EPA under the Section 402 permit program, rather than\n188\n\n\x0cunder Section 404. See Bragg v. Robertson, 54 F. Supp. 2d. 635 (S.D. W.Va. 1999), aff\xe2\x80\x99d\nin part, vacated in part sub nom Bragg v. West Virginia Coal Ass\xe2\x80\x99n, 248 F.3d 275 (4th Cir.\n2001). The Fourth Circuit did not resolve the question of whether Section 402 or 404\napplied to the valley fills, but the case did result in some changes to the federal regulation\nof valley fills. Pursuant to a partial settlement agreement of the case, the Corps agreed to\nrequire companies to obtain individual permits, rather than rely on the agency\xe2\x80\x99s nationwide\npermit, for many of the larger valley fills, and the Corps agreed to prepare an environmental\nimpact statement on mountaintop removal mining and valley fills. 54 F. Supp. 2d at 639.\nThe Corps, along with EPA, the Fish and Wildlife Service, and the West Virginia\nDepartment of Environmental Protection, completed the final environmental impact\nstatement in 2005. See U.S. Environmental Protection Agency, Final Programmatic\nEnvironmental Impact Statement (PEIS) on Mountaintop Mining/Valley Fills in Appalachia,\nEPA 903-R-05-002 (Oct. 2005).\nAlthough the Fourth Circuit, in Bragg, did not resolve the question of whether Section 402\nor 404 applied to valley fills, the court was faced with the question again a few years later in\nthe following case. Prior to the court\xe2\x80\x99s decision, the Corps began the process of amending\nits regulations to adopt a definition of \xe2\x80\x9cfill material\xe2\x80\x9d that mirrored EPA\xe2\x80\x99s definition and would\ndefine material as \xe2\x80\x9cfill material\xe2\x80\x9d if it had the effect of replacing a water of the United States\nwith dry land or of changing the bottom elevation of a water of the United States. See 65\nFed. Reg. 21,292 (Apr. 20, 2000). In the proposal, EPA and the Corps indicated that, prior\nto the proposal, the agencies generally agreed that valley fills would be regulated under\nSection 404 and, while the proposal would change the Corps\xe2\x80\x99 definition of \xe2\x80\x9cfill material,\xe2\x80\x9d it\nwould not change the division of authority between the agencies with regard to valley fills.\nId. at 21,295. However, the action challenged in the case was taken by the Corps under the\nexisting Corps\xe2\x80\x99 regulations, which defined \xe2\x80\x9cfill material\xe2\x80\x9d in terms of the purpose for which\nthe material was used.\n\nKentuckians for the\nCommonwealth v.\nRivenburgh\n317 F.3d 425 (4th Cir. 2003)\nNIEMEYER, Circuit Judge:\n\nResources for the Case\nCorps letter authorizing Beech Fork Mine under NWP 21\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\nVideos of Mountaintop Removal from Appalachian Voices,\nSmithsonian, and Discovery\nKentuckians for the Commonwealth web page\n\nThis appeal presents the issue of whether the U.S. Army Corps of Engineers has authority\nunder the Clean Water Act and under its now-superseded 1977 regulation implementing\nthe Act to issue permits for valley fills in connection with mountaintop coal mining. It does\nnot present the question of whether mountaintop coal mining is useful, desirable, or wise.\nKentuckians for the Commonwealth, Inc., a nonprofit corporation formed to promote "social\n189\n\n\x0cjustice and quality of life for all Kentuckians," commenced this action for declaratory and\ninjunctive relief to declare illegal the Corps\' interpretation of the Clean Water Act and to\nrequire the Corps to revoke the permit that it issued to Martin County Coal Corporation\nunder \xc2\xa7 404 of the Act, authorizing Martin Coal to place excess overburden from one of its\ncoal mining projects into 27 valleys in Martin County, Kentucky.\nOn cross-motions for summary judgment, the district court "found and concluded" that "fill\nmaterial" as used in \xc2\xa7 404 referred only to "material deposited for some beneficial primary\npurpose," not for waste disposal, and therefore that the Corps\' "approval of waste disposal\nas fill material under \xc2\xa7 404 [of the Clean Water Act] [was] ultra vires" and "beyond the\nauthority" of the Corps. Because Martin Coal\'s assignee of the permit, Beech Fork\nProcessing, Inc., proposed "to re-engineer [the] existing mine plan to place no spoil in\nwaters of the United States without a constructive primary purpose," the court found there\nto be no "imminent probable irreparable injury" to Kentuckians for the Commonwealth. The\ncourt determined that in the absence of injury, Kentuckians\' application for injunctive relief\nwith regard to the Martin Coal authorization "must be denied." But on the basis of its\nconclusion that the Corps acts ultra vires whenever it issues permits for valley fills without a\nbeneficial primary purpose, the district court entered a purely prospective permanent\ninjunction against the Corps. This injunction prohibits the Corps from "issuing any further\n\xc2\xa7 404 permits within the Huntington District [covering portions of five states] that have no\nprimary purpose or use but the disposal of waste," in particular, any permit to create valley\nfills with the spoil of mountaintop coal mining for the sole purpose of waste disposal.\nBecause we conclude that the Corps\' practice of issuing \xc2\xa7 404 permits, including the permit\nto Martin Coal, to create valley fills with the spoil of mountaintop coal mining is not ultra\nvires under the Clean Water Act and that the injunction issued by the district court was\noverbroad, we reverse the court\'s declaratory judgment; we vacate its injunction and the\nmemorandums and orders of May 8 and June 17, 2002; and we remand for further\nproceedings not inconsistent with this opinion.\nI.\nMartin County Coal Corporation ("Martin Coal"), having obtained a mining permit from the\nCommonwealth of Kentucky in November 1999 to undertake a surface mining project in\nMartin County, Kentucky, applied to the U.S. Army Corps of Engineers ("the Corps") for\nauthorization under \xc2\xa7 404 of the Clean Water Act and under the Corps\' Nationwide Permit\n21 ("NWP 21") "to construct hollow fills and sediment ponds in waters of the United States"\nin connection with the proposed mining project. On June 20, 2000, the Corps "authorized"\nMartin Coal\'s project, permitting it to place mining-operations "spoil" from "excess\noverburden" in 27 valleys, filling about 6.3 miles of streams. "Overburden" is the soil and\nrock that overlies a coal seam, and overburden that is excavated and removed is "spoil." In\nconnection with surface mining operations in mountains where the mine operator must\nreturn the mountains to their approximate original contour, the spoil is placed temporarily in\n190\n\n\x0cvalleys while the coal is removed from the seam and then returned to the mining location.\nHowever, because spoil takes up more space than did the original overburden, all surface\nmining creates excess spoil that must be placed somewhere. The permit in this case\nauthorized Martin Coal to create 27 valley fills with the excess spoil, which in turn would\nbury some 6.3 miles of streams at the heads of the valleys.\nThe Corps\' exercise of authority under NWP 21 to permit the creation of valley fills in\nconnection with mining operations was consistent with its past practices and with the\nunderstanding of the Corps and the EPA as to how the Clean Water Act divides\nresponsibility for its administration. While court cases have, over the years, evinced\nconfusion over that division based on the agencies\' differing approaches to defining "fill\nmaterial" in their regulations, see, e.g., Resource Investments, Inc. v. U.S. Army Corps of\nEng\'rs, 151 F.3d 1162 (9th Cir.1998); Avoyelles Sportsmen\'s League v. Marsh, 715 F.2d\n897 (5th Cir.1983), the Corps and the EPA have in fact exercised their authority\nconsistently in interpreting the Clean Water Act to give the Corps authority to issue permits\nfor the creation of valley fills in connection with surface coal mining activities.\nAt the time that the Corps issued its authorization to Martin Coal in this case, it had already\npublished notice, together with the EPA, of their intent to amend their regulations to resolve\nambiguities in both agencies\' regulatory definitions of "fill material" and to clarify the division\nof authority between the two agencies. As the Corps and the EPA stated in the public\nnotice of the intended amendments, issued on April 20, 2000:\nWith regard to proposed discharges of coal mining overburden, we believe that the\nplacement of such material into waters of the U.S. has the effect of fill and therefore,\nshould be regulated under CWA section 404. This approach is consistent with\nexisting practice and the existing EPA definition of the term "fill material." In\nAppalachia in particular, such discharges typically result in the placement of rock\nand other material in the heads of valleys, with a sedimentation pond located\ndownstream of this "valley fill." This has required authorization under CWA section\n404 for the discharges of fill material into waters of the U.S., including the\noverburden and coal refuse, as well as the berms, or dams, associated with the\nsedimentation ponds. The effect of these discharges is to replace portions of a water\nbody with dry land. Therefore, today\'s proposal makes clear that such material is to\nbe regulated under CWA section 404.\n65 Fed. Reg. 21,292, 21,295 (Apr. 20, 2000). This public notice also pointed out that the\nEPA would, in connection with coal mining activities, continue to regulate "effluent\ndischarged into waters of the U.S. from sedimentation ponds," pursuant to \xc2\xa7 402 of the\nClean Water Act. Id. at 21,296.\nIn August 2001, Kentuckians for the Commonwealth, Inc. ("Kentuckians"), commenced this\naction against the Corps under the Administrative Procedure Act ("APA"), challenging the\n191\n\n\x0cCorps\' action in issuing the June 20, 2000 permit to Martin Coal to create 27 valley fills and\nto bury 6.3 miles of streams. * * * In support of their request for declaratory and injunctive\nrelief, Kentuckians alleged that the Corps had violated \xc2\xa7 404 of the Clean Water Act as well\nas its own regulations and had "acted in a manner that is arbitrary, capricious, an abuse of\ndiscretion, and otherwise contrary to law, in violation of the APA, 5 U.S.C. \xc2\xa7 706(2)."\nKentuckians asked the court to "[d]eclare that Defendants\' June 20, 2000 decision granting\nauthorization under NWP 21 to [Martin Coal] is contrary to Section 404 of the CWA and its\nimplementing regulations ... in violation of the APA," and to "[i]ssue an order requiring\nDefendants to revoke [Martin Coal\'s] authorization under NWP 21 or, in the alternative, to\nsuspend that authorization pending completion of EPA\'s Section 404(c) proceeding and/or\nunless and until Defendants comply with their obligations herein under the APA, CWA, and\nNEPA [National Environmental Policy Act]." * * *\n[O]n May 8, 2002, the district court ruled on the pending cross-motions for summary\njudgment, concluding that the efforts of the Corps and the EPA, as well as their past\napplications of \xc2\xa7 404, were inconsistent with the Clean Water Act. Kentuckians for the\nCommonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927 (S.D.W.Va.2002). The court\ndeclared that "fill material" as used in \xc2\xa7 404 of the Clean Water Act "refers to material\ndeposited for some beneficial primary purpose: for construction work, infrastructure,\nimprovement and development in waters of the United States, not waste material\ndischarged solely to dispose of waste." Accordingly, the court declared that the Corps\'\n"approval of a waste disposal as fill material under \xc2\xa7 404 is ultra vires, that is, beyond the\nauthority of either [the Corps or the EPA]." * * *\nAlthough the court refused to grant Kentuckians\' motion for an injunction requiring the\nCorps to revoke its permit to Martin Coal because Martin Coal\'s assignee was prepared to\nreengineer the project so as not to create valley fills of waste material,* * * it issued a\npermanent injunction against the Corps prohibiting it from issuing "any further \xc2\xa7 404 permits\nthat have no primary purpose or use but the disposal of waste." As the court restated its\norder, it enjoined the issuance of "mountaintop removal overburden valley fill permits solely\nfor waste disposal under \xc2\xa7 404." The court did not, however, strike down the New Rule, as\nno party had challenged it. But it declared the New Rule to be ultra vires: * * *\nThe district court issued a revised memorandum and order dated June 17, 2002, in which it\nstated that the injunction did not have nationwide application; rather, it prohibited the Corps\nfrom issuing \xc2\xa7 404 permits "from their ordinary place of business, the Huntington District,"\nwhich the court stated would have "substantial national impact" because 97% of "stream\nlength affected by valley fills in the nation" was approved in the Huntington District in 2000.\nKentuckians for the Commonwealth, Inc. v. Rivenburgh, 206 F. Supp. 2d 782 (S.D.\nW.Va.2002). The court also stated that the injunction did not enjoin the New Rule, 33\nC.F.R. \xc2\xa7 323.2 (2002). The court repeated, however, its declaration that the New Rule was\n"inconsistent with the statutory scheme, and therefore ultra vires." * * *\n\n192\n\n\x0c[In Part II of the opinion, the court concluded that the injunction issued by the district court\nwas overbroad and the court vacated the injunction.]\nIII\n[At the beginning of Part III of the opinion, the court discussed which parts of the district\ncourt\xe2\x80\x99s opinion were dicta and which parts would be reviewed on appeal.]\n***\nThe judgment of the district court, as contained in its two orders of May 8 and June 17,\n2002, and the positions of the parties thus bring us to the single question whether \xc2\xa7 404 of\nthe Clean Water Act, in providing that the Corps "may issue permits... for the discharge of\ndredged or fill material into navigable waters," authorizes the Corps to issue permits for the\ncreation of valley fills in connection with coal mining activities, when the valley fills serve no\npurpose other than to dispose of excess overburden from the mining activity. This question\nis presented particularly in Kentuckians\' challenge of the Corps\' action in issuing the permit\nto Martin Coal.\nB\nWhen reviewing a particular agency action challenged under \xc2\xa7 706(2) of the APA, "[t]he\ncourt is first required to decide whether the [agency] acted within the scope of [its]\nauthority." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The first\nstep in this analysis is an examination of the statute providing authority for the agency to\nact. As the Supreme Court explained in NationsBank of North Carolina, N.A. v. Variable\nAnnuity Life Ins. Co., 513 U.S. 251, 257 (1995):\n[W]hen we confront an expert administrator\'s statutory exposition, we inquire first\nwhether "the intent of Congress is clear" as to "the precise question at issue."\nChevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842\n(1984). If so, "that is the end of the matter" Ibid. But "if the statute is silent or\nambiguous with respect to the specific issue, the question for the court is whether\nthe agency\'s answer is based on a permissible construction of the statute." Id. at\n843. If the administrator\'s reading fills a gap or defines a term in a way that is\nreasonable in light of the legislature\'s revealed design, we give the administrator\'s\njudgment "controlling weight." Id. at 844.\nThis analytical approach applies not only when a regulation is directly challenged, as in\nChevron, but also when a particular agency action is challenged, as in NationsBank.\nMoreover, when an agency acts pursuant to a regulation, a reviewing court must, if there is\nany dispute about the meaning of the regulation, interpret the meaning of the regulation to\n193\n\n\x0cdetermine whether the agency\'s action is consistent with the regulation. The reviewing\ncourt does not have much leeway in undertaking this interpretation, however, because the\nagency is entitled to interpret its own regulation and the agency\'s interpretation is\n"controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins,\n519 U.S. 452, 461 (1997) (internal quotation marks and citation omitted). This requirement\nof binding deference to agency interpretations of their own regulations, unless "plainly\nerroneous or inconsistent with the regulation," is known as Seminole Rock deference,\nhaving first been articulated in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414\n(1945).\nFinally, if there is any question whether an agency action taken pursuant to a regulation\nexceeds the agency\'s statutory authority, the statutory inquiry under Chevron step one\n(whether the intent of Congress is clear) must take place prior to interpreting the agency\'s\nown regulation. This ordering is a function of the Chevron test itself: If Congress has\nspoken clearly to the issue, then the regulation is inapplicable. See Chevron U.S.A. Inc. v.\nEchazabal, 536 U.S. 73 (2002) (applying an analytical approach by which the validity of an\naction taken in reliance a regulation depends, in the first instance, on whether the\nregulation itself exceeds the issuing agency\'s statutory authority); see also John F.\nManning, Constitutional Structure and Judicial Deference to Agency Interpretations of\nAgency Rules, 96 Colum. L. Rev. 612, 627 n.78 (1996) ("It is important to note that\nbecause a regulation must be consistent with the statute it implements, any interpretation of\na regulation naturally must accord with the statute as well.... [T]o get to Seminole Rock\ndeference, a court must first address the straightforward Chevron question whether an\nagency regulation, as interpreted, violates the statute. Seminole Rock addresses the further\nquestion whether the agency\'s interpretation is consistent with the regulation").\nC\nIn this case the Corps contends that "[t]he district court erred as a matter of law in holding\nthat the Corps lacks authority under CWA Section 404 to regulate as `fill material\' the\ndischarge of excess spoil from surface coal mining into waters of the United States." * * * It\nnotes that Congress did not define "fill material" and left that to the agencies charged with\nadministering \xc2\xa7 404. It concludes that the practice followed by it and by the EPA over the\nyears is "a permissible one entitled to deference" under Chevron. It claims that the new\ndual-agency construction in the New Rule reflects the agencies\' past practices and "falls\neasily within the most obvious reading of the term `fill material,\'" and is consistent with the\nstatutory scheme and purposes of the Clean Water Act.\n***\nKentuckians contends that "[t]he district court correctly held that the Corps lacks authority\nunder \xc2\xa7 404 of the Clean Water Act to allow the filling of waters of the United States solely\nfor waste disposal," but Kentuckians asserts that it "reaches that conclusion on grounds\n194\n\n\x0cthat differ, in part, from those relied on by the district court." Although Kentuckians agrees\nthat "fill material" has not been defined in the Clean Water Act, it argues that Congress\'\nintent is clear from the context of the Clean Water Act and that Congress did not mean for\nany provision of the Act to permit the Corps to "evade the water quality standards"\nmandated by the Act. Kentuckians asserts that to construe "fill material" in any way other\nthan that given by the district court would violate the clear intent of the Clean Water Act "to\nrestore and maintain the chemical, physical and biological integrity of the nation\'s waters."\n33 U.S.C. \xc2\xa7 1251(a). Kentuckians contends alternatively that even if the Act is ambiguous,\nthe Corps\' interpretation is unreasonable and impermissible because "[e]vasion of a\nstatute\'s core mandate and purpose can scarcely be considered a `reasonable\'\ninterpretation." Finally, Kentuckians asserts that the Corps\' interpretation is internally\ninconsistent because the Corps\' construction gives it authority over "mining waste, but\nexcludes trash and garbage." It argues that such a construction produces an absurd result\nbecause the burial of a stream by mining waste is "much more devastating" than\ndegradation of water by trash or garbage.\nAs with any issue of statutory interpretation, we begin with the language of the statute. If\ncongressional intent is clear from application of "traditional tools of statutory construction,"\nBrown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 161 (4th Cir.1998), aff\'d, 529\nU.S. 120 (2000), "that is the end of the matter; for the court, as well as the agency, must\ngive effect to the unambiguously expressed intent of Congress," Chevron, 467 U.S. at 84243. "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for\nthe court is whether the agency\'s answer is based on a permissible construction of the\nstatute." Id. at 843.\nBecause the Clean Water Act does not define "fill material," nor does it suggest on its face\nthe limitation of "fill material" found by the district court, the statute is silent on the issue\nbefore us, and such silence "normally creates ambiguity. It does not resolve it." Barnhart v.\nWalton, 535 U.S. 212 (2002); see also Piney Run Preservation Ass\'n v. County Comm\'rs,\n268 F.3d 255, 267 (4th Cir.2001) * * *\nThe district court concluded, however, that its facial interpretation -- that a permit issued\nunder \xc2\xa7 404 can only authorize the discharge of fill material into navigable waters "for some\nbeneficial primary purpose... not waste material discharged solely to dispose of waste" -was supported by \xc2\xa7 404(f)(2) of the Clean Water Act, by the Act\'s succession to the Rivers\nand Harbors Act, and by the Act\'s relation to the Surface Mining Control and Reclamation\nAct ("SMCRA"). We examine each of these to determine whether any unambiguously\nindicates a clear congressional intent with respect to the definition of "fill material" as used\nin \xc2\xa7 404(a). * * *\n[The court then examined, and rejected, each of those findings of the district court and\ndisagreed with the district court\xe2\x80\x99s conclusion that the statutory language was clear.]\n\n195\n\n\x0cThe district court\xe2\x80\x99s application of traditional tools of statutory construction thus could not\nleave it with a clear congressional intent that the undefined term \xe2\x80\x9cfill material\xe2\x80\x9d as used in\n\xc2\xa7 404 means material deposited for a beneficial primary purpose. Indeed, the lack of clarity\nin the term itself prompted the agencies to undertake efforts to develop the term\xe2\x80\x99s meaning\nfrom the context of the permit programs and the interrelationship between \xc2\xa7 402 permits\nand \xc2\xa7 404 permits. While the statute authorizes the EPA to issue permits \xe2\x80\x9cfor the discharge\nof any pollutant,\xe2\x80\x9d defining \xe2\x80\x9cpollutant\xe2\x80\x9d to include \xe2\x80\x9crock, sand, dirt and industrial, municipal\nand agricultural waste,\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(6), the EPA is not authorized to issue a permit for\n\xe2\x80\x9cfill material,\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1342(a)(1). Yet, when a permit is issued by the Corps under\n\xc2\xa7 404 for the discharge of fill material that has a substantive adverse effect on municipal\nwaters, fish, and wildlife, the EPA can veto the Corps\xe2\x80\x99 permit. 33 U.S.C. \xc2\xa7 1344 (c). The\nstatute\xe2\x80\x99s silence on the definition of \xe2\x80\x9cfill material\xe2\x80\x9d thus gives rise to ambiguity, particularly\nwhen a broad definition of \xe2\x80\x9cfill material\xe2\x80\x9d is employed.\nBased on our de novo review of whether Congress has spoken clearly on the meaning of\n"fill material," see Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir. 2001) (holding\nthat an issue of statutory construction is a "pure question of law" subject to de novo review),\nwe conclude that Congress has not clearly spoken on the meaning of "fill material" and, in\nparticular, has not clearly defined "fill material to be material deposited for some beneficial\nprimary purpose." Accordingly, we proceed into Chevron step-two analysis to determine\nwhether the Corps\' action is based on a permissible construction of \xc2\xa7 404. See Capitol\nMortgage Bankers, Inc. v. Cuomo, 222 F.3d 151, 155 (4th Cir.2000) (determining that the\ndistrict court\'s Chevron step-one holding was incorrect and stating that "[w]e must therefore\nproceed to the second step of the Chevron analysis and consider, with deference to [the\nagency\'s] expertise in this area, whether the agency\'s interpretation of the statute ... is\nbased on a permissible construction of the statute").\nD\nAlthough the district court rested its holding principally on a statutory interpretation of the\nClean Water Act under Chevron step one, concluding that "\xc2\xa7 404 is neither silent nor\nambiguous on the issue of \xc2\xa7 404 fills and their purposes," it addressed alternatively, albeit\nconclusorily, the reasonableness of the Corps\' interpretation of the statute under Chevron\nstep two. The court stated that its "examination of the legislative and regulatory history,\ninteragency agreements, and related statutes demonstrates any interpretation of \xc2\xa7 404 fill\nmaterial that ignores and deliberately eliminates the primary purpose test for fill\nauthorization is contrary to the purpose, principles, and policy of the CWA. [Citation\nomitted]. Such an agency interpretation is not permissible." The court thus reiterated the\nconclusion it reached in its Chevron step-one analysis, and its Chevron step-two analysis\ndid not give any deference to the agency\'s interpretation of this regulation nor did it explain\nwhy such deference would be inappropriate.\nBecause the agency action at issue in this case was taken at a time when the Corps\' 1977\n196\n\n\x0cRegulation was in effect, the appropriate inquiry under Chevron step two is whether that\nregulation, as interpreted by the Corps, is based on a permissible reading of the Clean\nWater Act, and, if so, whether the agency acted consistently with the regulation in issuing a\npermit to Mountain Coal to create valley fills in connection with coal mining activities.\nThe Corps\' 1977 Regulation defines "fill material" as "any material used for the primary\npurpose of replacing an aquatic area with dry land or of changing the bottom elevation of\na[] waterbody." 33 C.F.R. 323.2(e) (2001). The regulation provides further that "[t]he term\ndoes not include any pollutant discharged into the water primarily to dispose of waste, as\nthat activity is regulated under section 402 of the Clean Water Act." Id. At the time when\nthis 1977 Regulation was promulgated, the Corps, explaining the "waste" exclusion, stated\nthat in its experience:\nseveral industrial and municipal discharges of solid waste materials have been\nbrought to our attention which technically fit within our definition of "fill material" but\nwhich are intended to be regulated under the NPDES program [i.e., the EPA\'s\nprogram created under \xc2\xa7 402]. These include the disposal of waste materials such\nas sludge, garbage, trash, and debris in water.\n***\nThe Corps and the Environmental Protection Agency feel that the initial decision\nrelating to this type of discharge should be through the NPDES program.\n42 Fed. Reg. 37,122, 37,130 (July 19, 1977).\nTo demonstrate that the Corps\' understanding of its authority to issue permits for valley fills\nwas based on a longstanding division of authority between the Corps and the EPA that\nreflected the interpretations of both agencies with regard to their respective regulatory\nauthority under the Clean Water Act, the Corps submitted to the district court over 120\npages of correspondence with the EPA and with regulated parties addressing valley fill\npermits issued under Section 404. This correspondence, which spans approximately ten\nyears from 1990 through 2000, includes actual permit grants, EPA objections to Corps\nactions, and evaluations by the Corps and the EPA of mitigation plans. To the extent that\nthis correspondence reveals any disputes about the Corps\' exercise of its permitting\nauthority, these disputes focus on whether the impact of a particular valley fill would be\nmore than minimal, thus requiring the issuance of an individual permit rather than\nauthorization under a nationwide permit. The basic division of authority, including the\nCorps\' authority to issue valley fill permits, is apparent throughout this record of both\nagencies\' practices. The Corps also submitted the affidavit of Michael B. Cook, the director\nof EPA\'s Office of Wastewater Management in Washington, D.C. since 1991. According to\nMr. Cook:\n\n197\n\n\x0cWhile the effluent guidelines address certain discharges of pollutants associated\nwith coal mining operations (e.g., coal preparation plants and mine drainage), the\nregulations do not address discharges of soil, rock and vegetation (i.e., overburden)\nthat is excavated in order to access coal reserves and then placed in waters of the\nUnited States, as in the case of valley fills. To our knowledge, such discharges have\nonly been authorized by permits issued under section 404 of the CWA by the Army\nCorps of Engineers.\nIn short, the evidence submitted to the district court revealed a longstanding and consistent\ndivision of authority between the Corps and the EPA with regard to the issuance of permits\nunder CWA Section 402 and CWA Section 404.\nMoreover, when the Corps issued the permit to Martin Coal on June 20, 2000, it continued\nto operate with an understanding that it was authorized to regulate discharges of fill, even\nfor waste, unless the fill amounted to effluent that could be subjected to effluent limitations.\nIt certainly did not interpret its own 1977 Regulation to impose a beneficial primary purpose\nrequirement. This is evidenced by its public notice given on April 17, 2000, two months\nprior to the issuance of the permit at issue in this action, when the Corps joined with the\nEPA to propose a joint rule that would "not alter current practice," but rather was "intended\nto clarify what constitutes `fill material\' subject to CWA section 404." 65 Fed. Reg. at\n21,292. The Corps and the EPA recognized that some courts had interpreted the Corps\'\nregulation to impose a primary-purpose test applied without regard to the traditional division\nof authority between the Corps and the EPA, and that the ambiguities of this test had\ncaused confusion. As one specific example of this confusion, the Corps and the EPA\npointed to dicta in an opinion issued by the district court in an earlier valley-fill case in which\nthe district court determined that "the Corps lacked authority to regulate under CWA section\n404 the placement into waters of the U.S. of rock, sand, and earth overburden from coal\nsurface mining operations, because the `primary purpose\' of the discharge was waste\ndisposal." Id. at 21,295. Disclaiming any interpretation of the Corps\' 1977 Regulation that\nwould strip the Corps of authority to issue \xc2\xa7 404 permits for valley fills, the Corps and the\nEPA described what they understood the appropriate division of labor to be:\nThe section 402 program is focused on (although not limited to) discharges such as\nwastewater discharges from industrial operations and sewage treatment plants,\nstormwater and the like.... Pollutant discharges are controlled under the section 402\nprogram principally through the imposition of effluent limitations, which are\nrestrictions on the "quantities, rates, and concentrations of chemical, physical,\nbiological and other constituents which are discharged from point sources into\nnavigable waters".... There are no statutory or regulatory provisions under the\nsection 402 program designed to address discharges that convert waters of the U.S.\nto dry land.\n***\n198\n\n\x0c[S]ection 404 focuses exclusively on two materials: dredged material and fill\nmaterial. The term "fill material" clearly contemplates material that fills in a water\nbody, and thereby converts it to dry land or changes the bottom elevation. Fill\nmaterial differs fundamentally from the types of pollutants covered by section 402\nbecause the principal environmental concern is the loss of a portion of the water\nbody itself. For this reason, the section 404 permitting process focuses on different\nconsiderations than the section 402 permitting program.\nId. at 21,293.\nThis contemporaneous explanation by the two agencies charged with the responsibility of\nadministering the Clean Water Act provides a rational interpretation of the 1977 Regulation\nthat is neither plainly erroneous nor inconsistent with the text of the regulation. The 1977\nRegulation seeks to divide the statutory responsibilities between the agencies charged with\ndifferent responsibilities by defining "fill material" that is subject to regulation by the Corps\nand "waste" that is subject to regulation by the EPA through the administration of effluent\nlimitations. Moreover, the resolution among agencies of the line dividing their\nresponsibilities is just the type of agency action to which the courts must defer. See\nEchazabal, 122 S. Ct. at 2052 (noting that the EEOC\'s resolution of a tension between the\nAmericans with Disabilities Act and the Occupational Safety and Health Act "exemplifies\nthe substantive choices that agencies are expected to make when Congress leaves the\nintersection of competing objectives both imprecisely marked and subject to administrative\nleeway").\nA reviewing court can set aside the agency\'s interpretation of its own regulation only if that\ninterpretation is "plainly erroneous or inconsistent with the regulation." Auer, 519 U.S. at\n461 (internal quotation marks and citation omitted). When we examine the Corps\' 1977\nRegulation and its interpretations of that regulation, we conclude that the Corps\'\ninterpretations of the 1977 Regulation -- made both by interpretations published in the\nFederal Register and by its application of that regulation in issuing permits -- were neither\nplainly erroneous nor inconsistent with the text of the regulation.\nWe next determine whether the 1977 Regulation itself, as construed by both the Corps and\nthe EPA, was also a permissible reading of the Clean Water Act.\nThe stated goal of the Clean Water Act is "to restore and maintain the chemical, physical,\nand biological integrity of the Nation\'s waters." 33 U.S.C. \xc2\xa7 1251(a). To that end, the Clean\nWater Act prohibits discharges of pollutants into the waters of the United States, except in\ncompliance with a permit issued by one of the permit regimes established by the Act. 33\nU.S.C. \xc2\xa7 1311(a). Two principal regimes are created in \xc2\xa7\xc2\xa7 402 and 404 of the Act. Section\n402 creates a permit program under the National Pollutant Discharge Elimination System, a\ncombination of State and EPA regulatory activities that is administered by the EPA. Section\n404 creates a permit program administered by the Corps, authorizing the Corps to issue\n199\n\n\x0cpermits only in connection with the "discharge of dredged or fill material into the navigable\nwaters at specified disposal sites." 33 U.S.C. \xc2\xa7 1344(a). The two sections are linked by\ncross-references, exclusions, and vetoes. Section 402 authorizes the EPA to issue permits\nfor the discharge of any pollutant or combination of pollutants, except as provided in \xc2\xa7 404.\nAnd \xc2\xa7 404 in turn provides that the Corps may issue permits for the limited discharges\nrelating to dredged or fill material, providing that the Corps\' permits are always subject to\nthe veto power of the EPA when the dredged or fill material would have "an unacceptable\nadverse effect on municipal water supplies, shellfish beds and fishery areas ... wildlife, or\nrecreational areas." 33 U.S.C. \xc2\xa7 1344(c). Thus, a \xc2\xa7 404 permit is always subject to the\nEPA\'s determination that a discharge will have an "unacceptable adverse effect" on certain\nspecified waters, reinforcing the fill-effluent distinction that has been followed by the\nagencies.\nBecause the Clean Water Act clearly intended to divide functions between the Corps and\nthe EPA based on the type of discharge involved, we conclude that it was consistent with\nthe Act for the Corps to have adopted its 1977 Regulation defining "fill material" to be\nany material used for the primary purpose of replacing an aquatic area with dry land\nor of changing the bottom elevation of a water body. The term does not include any\npollutant discharged into the water primarily to dispose of waste, as that activity is\nregulated under Section 402 of the Clean Water Act.\n33 C.F.R. \xc2\xa7 323.2(e) (2001). The first sentence of this regulation adopts an inclusive test\nthat focuses on the purposeful displacement of water with solid material. The second\nsentence provides, as construed by the agencies, an exclusion which defers to the EPA\'s\nauthority to regulate "waste." Because it was not plainly erroneous or inconsistent with the\nregulation for the Corps to have asserted that its use of the term "waste" in the 1977\nRegulation was not intended to defer to the EPA on all material deposited for disposal, as\nwe have already concluded, we read the 1977 Regulation to include that interpretation and,\nas so interpreted, conclude that the 1977 Regulation was a rational interpretation of the\nClean Water Act. Section 404 confers on the Corps all responsibility to issue permits for the\ndischarges of "fill material," but it gives the EPA a veto when those discharges might\nadversely affect the quality of certain waters. Section 402 confers on the EPA responsibility\nto regulate the discharge of pollutants into waters under mechanisms to administer effluent\nlimitations. The two authorizations might overlap on certain types of "fill material" that\nadversely affect the quality of water, and the 1977 Regulation, as interpreted by the Corps,\nreasonably addresses this potential ambiguity.\nIn sum, we conclude that the Corps\' interpretation of "fill material" as used in \xc2\xa7 404 of the\nClean Water Act to mean all material that displaces water or changes the bottom elevation\nof a water body except for "waste" -- meaning garbage, sewage, and effluent that could be\nregulated by ongoing effluent limitations as described in \xc2\xa7 402 -- is a permissible\nconstruction of \xc2\xa7 404. And as an interpretation of its 1977 Regulation, it is neither plainly\n200\n\n\x0cerroneous nor inconsistent with the text of the regulation.\nThe Corps\' issuance of the permit to Martin Coal on June 20, 2000, therefore, was not\narbitrary, capricious, an abuse of discretion, or otherwise contrary to law insofar as\nKentuckians alleged in Count I of the complaint. On this issue, we reverse the judgment of\nthe district court.\nQuestions and Comments\n1.\n\nThis case involved a question of whether the 1977 Corps regulatory definition of \xe2\x80\x9cfill\nmaterial\xe2\x80\x9d was authorized by the Clean Water Act and whether the Corps\xe2\x80\x99\ninterpretation of that regulation was appropriate. As in the Supreme Court\xe2\x80\x99s\nRiverside Bayview Homes case, the Fourth Circuit noted, in this case, that the\nChevron analysis applied to the first question, while the Auer analysis applied to the\nsecond question. The order in which the court addressed those questions, though, is\na bit unorthodox. The court begins the opinion with a focus on Chevron step 1,\nmoves to Auer, then returns to Chevron step 2. Why might the court have structured\nthe opinion in that manner?\n\n2.\n\nChevron: Although the district court determined that the Clean Water Act was clear\nand did not authorize the Corps to regulate valley fills as \xe2\x80\x9cfill material,\xe2\x80\x9d the appellate\ncourt concluded that the statute is ambiguous, so the agency\xe2\x80\x99s interpretation is\nentitled to deference at Chevron step 2. At Chevron step 1, the appellate court\nseems to focus solely on the text of the statute to find that the Clean Water Act is\nambiguous with regard to whether \xe2\x80\x9cfill material\xe2\x80\x9d means \xe2\x80\x9cmaterial deposited for some\nprimary beneficial purpose.\xe2\x80\x9d On what basis, then, does it conclude, at Chevron step\n2, that the Corps\xe2\x80\x99 interpretation of the statute (rather than the regulation) is\nreasonable? Has the court set the Chevron bar very high?\n\n3.\n\nKentuckians for the Commonwealth argued that permits issued under Section 402 of\nthe Clean Water Act incorporate standards to protect water quality that are not\nincluded in Section 404 permits, and that the Corps could not define \xe2\x80\x9cfill material\xe2\x80\x9d in\na way that would include valley fills because such a regulation would evade the\nimplementation of those standards and violate the water quality protection purposes\nof the statute. Does the appellate court address that argument or focus on those\npurposes of the statute in interpreting it? A regulation that defined \xe2\x80\x9cfill material\xe2\x80\x9d to be\nlimited to materials primarily used for a beneficial purpose would seem to advance\nthat purpose.\n\n4.\n\nAuer: When will an agency\xe2\x80\x99s interpretation of its regulations be \xe2\x80\x9cplainly erroneous or\ninconsistent with the regulation\xe2\x80\x9d under Auer? The Corps\xe2\x80\x99 regulations provided that\n\xe2\x80\x9cfill material\xe2\x80\x9d \xe2\x80\x9cdoes not include any pollutant discharged into the water primarily to\ndispose of waste.\xe2\x80\x9d Regardless of the long-standing nature of the Corps and EPA\xe2\x80\x99s\n201\n\n\x0cinterpretation of the Corps\xe2\x80\x99 regulation, is there any purpose for the disposal of the\nmining spoils in the valley other than waste disposal?\n5.\n\nThe district court also concluded that the rule that the Corps proposed in 2000 to\nredefine \xe2\x80\x9cfill material\xe2\x80\x9d (the \xe2\x80\x9cnew rule\xe2\x80\x9d) was outside of the agency\xe2\x80\x99s authority. Why do\nyou think that the appellate court vacated that determination without much\ndiscussion?\n\n6.\n\nAfter the case was decided, the Corps finalized the \xe2\x80\x9cnew rule\xe2\x80\x9d mentioned in the case\nand adopted EPA\xe2\x80\x99s definition of \xe2\x80\x9cfill material,\xe2\x80\x9d which is based on the \xe2\x80\x9ceffect\xe2\x80\x9d of the\nplacement of material, rather than its purpose. See 33 C.F.R. \xc2\xa7 323.2. Under the\nnew regulation, it is certainly easier to argue that \xe2\x80\x9cvalley fills\xe2\x80\x9d have the \xe2\x80\x9ceffect\xe2\x80\x9d of\nchanging the bottom elevation of waters of the United States or replacing a portion\nof the waters of the United States with dry land, regardless of their purpose. Thus,\nthe Corps\xe2\x80\x99 interpretation of the new rule would clearly seem to be entitled to Auer\ndeference. Could the new rule still be challenged as beyond the Corps\xe2\x80\x99 statutory\nauthority, though? Would such a challenge likely be successful in the Fourth Circuit?\n\n7.\n\nScope of Injunction: The injunction issued by the district court was a regional\ninjunction, rather than a national injunction. Note, however, that the appellate court\npointed out that activities authorized by one district office of the Corps of Engineers\nin Kentucky accounted for 97% of the stream length affected by valley fills in the\nnation in 2000.\n\n8.\n\nEnvironmental Justice: Note that the plaintiff, Kentuckians for the Commonwealth,\nis described in the opinion as \xe2\x80\x9ca nonprofit corporation formed to promote \xe2\x80\x98social\njustice and quality of life for all Kentuckians.\xe2\x80\x9d Numerous studies over several\ndecades have demonstrated that low income and minority communities are\ndisparately impacted by pollution. See Stephen M. Johnson, Economics v. Equity:\nDo Market-Based Environmental Reforms Exacerbate Environmental Injustice?, 56\nWash. & Lee L. Rev. 111, 117 (1999). The mountaintop removal mining issue is\nanother example of this trend. See Patrick McGinley, Collateral Damage: Turning a\nBlind Eye to Environmental and Social Injustice in the Coalfields, 19 J. Envtl. &\nSustainability L. 305 (2013). The Appalachia region, where most mountaintop\nremoval mining takes place, is one of the poorest regions in the country. See e.g.\nAppalachian Regional Commission, Economic Overview of Appalachia - 2011 (per\ncapita income in Appalachia is 18% lower than the national average). As Professor\nPatrick McGinley notes, \xe2\x80\x9cAfter a century of mining in the \xe2\x80\x98billion dollar coalfields\xe2\x80\x99,\nlocal communities lack funds to upgrade aging schools, tens of thousands live below\nthe federal \xe2\x80\x98poverty line\xe2\x80\x99; and public services such as fire, police, sewage treatment,\nand libraries struggle to survive . . .\xe2\x80\x9d Patrick C. McGinley, From Pick & Shovel to\nMountaintop Removal: Environmental Injustice in the Appalachian Coalfields, 34\nEnvir. L. 21, 23 (2004). Because of the implementation of new technologies and\n202\n\n\x0cpractices like mountaintop removal mining, mining employment decreased in\nKentucky by two thirds between 1980 and 2006, although production from the mines\ndecreased only slightly. See Kentuckians for the Commonwealth, How Does\nMountaintop Removal Affect the Economy? Perhaps these factors played some role\nin the court\xe2\x80\x99s statement at the outset of the opinion that the case \xe2\x80\x9cdoes not present\nthe question of whether mountaintop coal mining is useful, desirable, or wise.\xe2\x80\x9d\n9.\n\nMore Resources: Additional information about mountaintop removal mining is\navailable on the websites of EPA, NRDC, Sierra Club, Earthjustice, Appalachian\nVoices, and Kentuckians for the Commonwealth.\n\n10.\n\nPost-Script: After another Fourth Circuit ruling in 2009, Ohio Valley Environmental\nCoalition v. Aracoma Coal Company, 556 F.3d 1777 (4th Cir. 2009), in which the\ncourt rejected challenges that the Corps violated the National Environmental Policy\nAct and acted arbitrarily in approving four valley fill permits, EPA announced that it\nwould review all pending surface coal mining permit requests in Appalachia\npursuant to its authority under Section 404 to review and comment on permits\nissued by the Corps. In June, 2009, EPA, the Corps and the Department of Interior\nsigned a Memorandum of Understanding that established a series of actions to\nreduce the environmental impacts of mountaintop mining. See Memorandum of\nUnderstanding among the U.S. Department of the Army, U.S. Department of the\nInterior, and U.S. Environmental Protection Agency Implementing the Interagency\nAction Plan on Appalachian Surface Coal Mining (June 11, 2009). As part of the\naction plan in that MOU, EPA and the Corps began using an Enhanced\nCoordination Procedure (\xe2\x80\x9cECP\xe2\x80\x9d) for evaluating 79 coal mining permits that EPA\nidentified for additional environmental review. See CRS Mountaintop Mining Report,\nsupra at 6. Coal companies complained that the process significantly delayed permit\ndecisions and they challenged the ECP in court. In National Mining Association v.\nJackson, 816 F. Supp. 2d 37 (D.D.C. 2011), the United States District Court for the\nDistrict of Columbia held that the ECP unlawfully transferred Clean Water act\nauthority from the Corps to EPA. Although the court set aside the ECP, EPA and the\nCorps subsequently issued memoranda to the field reminding staff that the agencies\nshould coordinate their review of mining permits in accordance with existing agency\nregulations. See Nancy Stoner, Acting Assistant Administrator, U.S. Environmental\nProtection Agency, Office of Water, Transmittal of Department of the Army Memo on\n\xe2\x80\x9cDecision in National Mining Association et al. v. Jackson, et al\xe2\x80\x9d. The D.C. Circuit\nlater overturned the decision of the district court and upheld the ECP. See National\nMining Association v. McCarthy, No. 12-5310 (D.C. Cir. July 11, 2014). EPA\xe2\x80\x99s role in\nthe 404 permitting process is discussed in detail in Chapter 6 of this book.\nIn addition to the litigation discussed above, mountaintop removal mining has\nspurred litigation focusing on the appropriate scope of coverage of nationwide\npermits and EPA\xe2\x80\x99s authority to veto Section 404 permits. Those cases, and the\n203\n\n\x0cunderlying controversies, will be explored in detail in Chapters 6 (Permits) and 8\n(EPA Vetoes).\n11.\n\nLandfills: When the Corps amended its regulatory definition of fill material, it\nincluded a non-exclusive list of materials that met the definition (rock, sand, soil,\nclay, plastics, construction debris, wood chips, overburden from mining or other\nexcavation activities, and materials used to create any structure or infrastructure in\nthe waters of the United States) and specifically provided that the term \xe2\x80\x9cdoes not\ninclude trash or garbage.\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 323.2. In addition, in the preamble to the\nrule, the agency indicated that fill material used to create liners, berms and other\ninfrastructure associated with solid waste landfills would be regulated as fill material\nunder Section 404, rather than under section 402. See 67 Fed. Reg. 31129, 31134\n(May 9, 2002).\n\nInterview\nProfessor Pat McGinley, Charles H. Haden II Professor of Law at West\nVirginia College of Law and frequent mountaintop removal mining litigator\ndiscusses:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nThe history of mountaintop removal mining (YouTube)\nValley fills and their environmental impacts (YouTube)\nOther impacts of mountaintop removal mining (YouTube)\nBenefits to communities from mountaintop removal mining\n(YouTube)\nThe environmental justice impacts of mountaintop removal mining\n(YouTube)\nRepresenting communities affected by mountaintop removal\nmining (YouTube).\n\nWhile there has been significant litigation surrounding mountaintop removal mining, more\ntraditional mining activities have also spawned Section 404 litigation. In 2004, Coeur Mining\nsought to reopen the Kensington Mine, located near the Tongass National Forest in Alaska,\nwhich had ceased operations in 1928. As noted above, EPA and the Corps regulate the\ndisposal of a variety of types of mining waste as the \xe2\x80\x9cdischarge of fill material,\xe2\x80\x9d requiring a\nSection 404 permit rather than a Section 402 permit. Accordingly, Coeur Mining sought,\nand received, a Section 404 permit from the Corps of Engineers that authorized the\ndisposal of mining waste from the Kensington Mine in the Lower Slate Lake in Alaska. As\nnoted above, when EPA issues Section 402 permits, the permits often include limits on\npollution discharges based on technology-based and water quality based standards. Those\nlimits are not included in Section 404 permits that the Corps issues. The controversy arose\n204\n\n\x0cin the Kensington Mine case because EPA had developed technology-based pollution limits\nthat would have significantly limited or precluded Coeur from disposing of its mining waste\nin the Lower Slate Lake if Coeur were required to obtain a Section 402 permit. However,\nsince Coeur was not required to obtain a Section 402 permit, the EPA standards did not\napply to Coeur\xe2\x80\x99s disposal of waste in the Lake, but did apply to any pollution that was\nreleased from the Lake. The Southeast Alaska Conservation Council, a local environmental\ngroup, challenged the permit, arguing that the Corps lacked authority under the Clean\nWater Act to issue the Section 404 permit and that the permit should have been issued by\nEPA under Section 402.\n\nPhoto 30 Lower Slate Lake Before and After - Photo by EarthJustice http://blog.nwf.org/2012/10/theclean-water-act-40-years-and-still-a-work-in-progress/lowerslate_beforeandafter/\n\n205\n\n\x0cCoeur Alaska, Inc. v. Southeast Alaska Conservation Council\n557 U.S. 261 (2009)\nJustice Kennedy delivered the opinion\nof the Court\n\nResources for the Case\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\nOral Argument Audio (from the Oyez Project)\nInformation on \xe2\x80\x9cfroth flotation\xe2\x80\x9d\nCorps 404 permit for Coeur; EPA NPDES permit\nCoeur operating plan\nAlaska DNR Resource Page\nWebsites for Coeur and SEACC; Colbert Report\n\nThese cases require us to address two questions under the Clean Water Act (CWA or Act).\nThe first is whether the Act gives authority to the United States Army Corps of Engineers, or\ninstead to the Environmental Protection Agency (EPA), to issue a permit for the discharge\nof mining waste, called slurry. The Corps of Engineers has issued a permit to petitioner\nCoeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into a lake in Southeast Alaska.\nThe second question is whether, when the Corps issued that permit, the agency acted in\naccordance with law. We conclude that the Corps was the appropriate agency to issue the\npermit and that the permit is lawful.\nWith regard to the first question, \xc2\xa7 404(a) of the CWA grants the Corps the power to \xe2\x80\x9cissue\npermits \xe2\x80\xa6 for the discharge of \xe2\x80\xa6 fill material.\xe2\x80\x9d 86 Stat. 884; 33 U.S.C. \xc2\xa7 1344(a). But the\nEPA also has authority to issue permits for the discharge of pollutants. Section 402 of the\nAct grants the EPA authority to \xe2\x80\x9cissue a permit for the discharge of any pollutant\xe2\x80\x9d \xe2\x80\x9c[e]xcept\nas provided in\xe2\x80\x9d \xc2\xa7 404. 33 U.S.C. \xc2\xa7 1342(a). We conclude that because the slurry Coeur\nAlaska wishes to discharge is defined by regulation as \xe2\x80\x9cfill material,\xe2\x80\x9d 40 C.F.R. \xc2\xa7 232.2\n(2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under\n\xc2\xa7 404, rather than from the EPA, under \xc2\xa7 402.\nThe second question is whether the Corps permit is lawful. Three environmental groups,\nrespondents here, sued the Corps under the Administrative Procedure Act, arguing that the\nissuance of the permit by the Corps was \xe2\x80\x9cnot in accordance with law.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 706(2)(A).\nThe environmental groups are Southeast Alaska Conservation Council, Sierra Club, and\nLynn Canal Conservation (collectively, SEACC). The State of Alaska and Coeur Alaska are\npetitioners here.\nSEACC argues that the permit from the Corps is unlawful because the discharge of slurry\n206\n\n\x0cwould violate an EPA regulation promulgated under \xc2\xa7 306(b) of the CWA, 33 U.S.C.\n\xc2\xa7 1316(b). The EPA regulation, which is called a \xe2\x80\x9cnew source performance standard,\xe2\x80\x9d\nforbids mines like Coeur Alaska\xe2\x80\x99s from discharging \xe2\x80\x9cprocess wastewater\xe2\x80\x9d into the navigable\nwaters. 40 C.F.R. \xc2\xa7 440.104(b)(1). Coeur Alaska, the State of Alaska, and the federal\nagencies maintain that the Corps permit is lawful nonetheless because the EPA\xe2\x80\x99s\nperformance standard does not apply to discharges of fill material.\nReversing the judgment of the District Court, the Court of Appeals held that the EPA\xe2\x80\x99s\nperformance standard applies to this discharge so that the permit from the Corps is\nunlawful.\nI\nA\nPetitioner Coeur Alaska plans to reopen the Kensington Gold Mine, located some 45 miles\nnorth of Juneau, Alaska. The mine has been closed since 1928, but Coeur Alaska seeks to\nmake it profitable once more by using a technique known as \xe2\x80\x9cfroth flotation.\xe2\x80\x9d Coeur Alaska\nwill churn the mine\xe2\x80\x99s crushed rock in tanks of frothing water. Chemicals in the water will\ncause gold-bearing minerals to float to the surface, where they will be skimmed off.\nAt issue is Coeur Alaska\xe2\x80\x99s plan to dispose of the mixture of crushed rock and water left\nbehind in the tanks. This mixture is called slurry. Some 30 percent of the slurry\xe2\x80\x99s volume is\ncrushed rock, resembling wet sand, which is called tailings. The rest is water.\nThe standard way to dispose of slurry is to pump it into a tailings pond. The slurry\nseparates in the pond. Solid tailings sink to the bottom, and water on the surface returns to\nthe mine to be used again.\nRather than build a tailings pond, Coeur Alaska proposes to use Lower Slate Lake, located\nsome three miles from the mine in the Tongass National Forest. This lake is small \xe2\x80\x94 800\nfeet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. See App. 138a,\n212a. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is\na navigable water of the United States and so is subject to the CWA. They also agree there\ncan be no discharge into the lake except as the CWA and any lawful permit allow.\nOver the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake.\nThis will raise the lakebed 50 feet \xe2\x80\x94 to what is now the lake\xe2\x80\x99s surface \xe2\x80\x94 and will increase\nthe lake\xe2\x80\x99s area from 23 to about 60 acres. Id., at 361a (62 acres), 212a (56 acres). To\ncontain this wider, shallower body of water, Coeur Alaska will dam the lake\xe2\x80\x99s downstream\nshore. The transformed lake will be isolated from other surface water. Creeks and\nstormwater runoff will detour around it. Id., at 298a. Ultimately, lakewater will be cleaned by\npurification systems and will flow from the lake to a stream and thence onward. Id., at\n309a\xe2\x80\x93312a.\n207\n\n\x0cB\nNumerous state and federal agencies reviewed and approved Coeur Alaska\xe2\x80\x99s plans. At\nissue here are actions by two of those agencies: the Corps of Engineers and the EPA.\n1\nThe CWA classifies crushed rock as a \xe2\x80\x9cpollutant.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1362(6). On the one hand,\nthe Act forbids Coeur Alaska\xe2\x80\x99s discharge of crushed rock \xe2\x80\x9c[e]xcept as in compliance\xe2\x80\x9d with\nthe Act. CWA \xc2\xa7301(a), 33 U.S.C. \xc2\xa71311(a). Section 404(a) of the CWA, on the other hand,\nempowers the Corps to authorize the discharge of \xe2\x80\x9cdredged or fill material.\xe2\x80\x9d 33 U.S.C.\n\xc2\xa7 1344(a). The Corps and the EPA have together defined \xe2\x80\x9cfill material\xe2\x80\x9d to mean any\n\xe2\x80\x9cmaterial [that] has the effect of \xe2\x80\xa6 [c]hanging the bottom elevation\xe2\x80\x9d of water. 40 C.F.R.\n\xc2\xa7 232.2. The agencies have further defined the \xe2\x80\x9cdischarge of fill material\xe2\x80\x9d to include\n\xe2\x80\x9cplacement of \xe2\x80\xa6 slurry, or tailings or similar mining-related materials.\xe2\x80\x9d Ibid.\nIn these cases the Corps and the EPA agree that the slurry meets their regulatory definition\nof \xe2\x80\x9cfill material.\xe2\x80\x9d On that premise the Corps evaluated the mine\xe2\x80\x99s plan for a \xc2\xa7 404 permit.\nAfter considering the environmental factors required by \xc2\xa7 404(b), the Corp issued Coeur\nAlaska a permit to pump the slurry into Lower Slate Lake. App. 340a\xe2\x80\x93378a.\nIn granting the permit the Corps followed the steps set forth by \xc2\xa7 404. Section 404(b)\nrequires the Corps to consider the environmental consequences of every discharge it\nallows. 33 U.S.C. \xc2\xa7 1344(b). The Corps must apply guidelines written by the EPA pursuant\nto \xc2\xa7 404(b). See ibid.; 40 C.F.R. pt. 230 (EPA guidelines). Applying those guidelines here,\nthe Corps determined that Coeur Alaska\xe2\x80\x99s plan to use Lower Slate Lake as a tailings pond\nwas the \xe2\x80\x9cleast environmentally damaging practicable\xe2\x80\x9d way to dispose of the tailings. App.\n366a. To conduct that analysis, the Corps compared the plan to the proposed alternatives.\nThe Corps determined that the environmental damage caused by placing slurry in the lake\nwill be temporary. And during that temporary disruption, Coeur Alaska will divert waters\naround the lake through pipelines built for this purpose. Id., at 298a. Coeur Alaska will also\ntreat water flowing from the lake into downstream waters, pursuant to strict EPA criteria.\nIbid.; see Part I\xe2\x80\x93B\xe2\x80\x932, infra. Though the slurry will at first destroy the lake\xe2\x80\x99s small population\nof common fish, that population may later be replaced. After mining operations are\ncompleted, Coeur Alaska will help \xe2\x80\x9crecla[im]\xe2\x80\x9d the lake by \xe2\x80\x9c[c]apping\xe2\x80\x9d the tailings with about\n4 inches of \xe2\x80\x9cnative material.\xe2\x80\x9d App. 361a; id., at 309a. The Corps concluded that\n\xe2\x80\x9c[t]he reclamation of the lake will result in more emergent wetlands/vegetated\nshallows with moderate values for fish habitat, nutrient recycling, carbon/detrital\nexport and sediment/toxicant retention, and high values for wildlife habitat.\xe2\x80\x9d Id., at\n361a.\n\n208\n\n\x0cIf the tailings did not go into the lake, they would be placed on nearby wetlands. The\nresulting pile would rise twice as high as the Pentagon and cover three times as many\nacres. Reply Brief for Petitioner Coeur Alaska 27. If it were chosen, that alternative would\ndestroy dozens of acres of wetlands\xe2\x80\x94a permanent loss. App. 365a\xe2\x80\x93366a. On the premise\nthat when the mining ends the lake will be at least as environmentally hospitable, if not\nmore so, than now, the Corps concluded that placing the tailings in the lake will cause less\ndamage to the environment than storing them above ground: The reclaimed lake will be\n\xe2\x80\x9cmore valuable to the aquatic ecosystem than a permanently filled wetland \xe2\x80\xa6 that has lost\nall aquatic functions and values.\xe2\x80\x9d Id., at 361a; see also id., at 366a.\n2\nThe EPA had the statutory authority to veto the Corps permit, and prohibit the discharge, if\nit found the plan to have \xe2\x80\x9can unacceptable adverse effect on municipal water supplies,\nshellfish beds and fishery areas \xe2\x80\xa6 , wildlife, or recreational areas.\xe2\x80\x9d CWA \xc2\xa7 404(c), 33\nU.S.C. \xc2\xa7 1344(c). After considering the Corps findings, the EPA did not veto the Corps\npermit, even though, in its view, placing the tailings in the lake was not the \xe2\x80\x9cenvironmentally\npreferable\xe2\x80\x9d means of disposing of them. App. 300a. By declining to exercise its veto, the\nEPA in effect deferred to the judgment of the Corps on this point.\nThe EPA\xe2\x80\x99s involvement extended beyond the agency\xe2\x80\x99s veto consideration. The EPA also\nissued a permit of its own\xe2\x80\x94not for the discharge from the mine into the lake but for the\ndischarge from the lake into a downstream creek. Id., at 287a\xe2\x80\x93331a. Section 402 grants the\nEPA authority to \xe2\x80\x9cissue a permit for the discharge of any pollutant,\xe2\x80\x9d \xe2\x80\x9c[e]xcept as provided in\n[CWA \xc2\xa7 404].\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1342(a). The EPA\xe2\x80\x99s \xc2\xa7 402 permit authorizes Coeur Alaska to\ndischarge water from Lower Slate Lake into the downstream creek, subject to strict waterquality limits that Coeur Alaska must regularly monitor. App. 303a\xe2\x80\x93304a, 309a.\nThe EPA\xe2\x80\x99s authority to regulate this discharge comes from a regulation, termed a \xe2\x80\x9cnew\nsource performance standard,\xe2\x80\x9d that it has promulgated under authority granted to it by\n\xc2\xa7306(b) of the CWA. Section 306(b) gives the EPA authority to regulate the amount of\npollutants that certain categories of new sources may discharge into the navigable waters\nof the United States. 33 U.S.C. \xc2\xa7 1316(b). Pursuant to this authority, the EPA in 1982\npromulgated a new source performance standard restricting discharges from new frothflotation gold mines like Coeur Alaska\xe2\x80\x99s. The standard is stringent: It allows \xe2\x80\x9cno discharge\nof process wastewater\xe2\x80\x9d from these mines. 40 C.F.R. \xc2\xa7 440.104(b)(1).\nApplying that standard to the discharge of water from Lower Slate Lake into the\ndownstream creek, the EPA\xe2\x80\x99s \xc2\xa7 402 permit sets strict limits on the amount of pollutants the\nwater may contain. The permit requires Coeur Alaska to treat the water using \xe2\x80\x9creverse\nosmosis\xe2\x80\x9d to remove aluminum, suspended solids, and other pollutants. App. 298a; id., at\n304a. Coeur Alaska must monitor the water flowing from the lake to be sure that the\npollutants are kept to low, specified minimums. Id., at 326a\xe2\x80\x93330a.\n209\n\n\x0cC\nSEACC brought suit against the Corps of Engineers and various of its officials in the United\nStates District Court for the District of Alaska. The Corps permit was not in accordance with\nlaw, SEACC argued, for two reasons. First, in SEACC\xe2\x80\x99s view, the permit was issued by the\nwrong agency\xe2\x80\x94Coeur Alaska ought to have sought a \xc2\xa7 402 permit from the EPA, just as\nthe company did for the discharge of water from the lake into the downstream creek. See\nPart I\xe2\x80\x93B\xe2\x80\x932, supra. Second, SEACC contended that regardless of which agency issued the\npermit, the discharge itself is unlawful because it will violate the EPA new source\nperformance standard for froth-flotation gold mines. (This is the same performance\nstandard described above, which the EPA has already applied to the discharge of water\nfrom the lake into the downstream creek. See ibid.) SEACC argued that this performance\nstandard also applies to the discharge of slurry into the lake. It contended further that the\nperformance standard is a binding implementation of \xc2\xa7 306. Section 306(e) of the CWA\nmakes it \xe2\x80\x9cunlawful\xe2\x80\x9d for Coeur Alaska to \xe2\x80\x9coperate\xe2\x80\x9d the mine \xe2\x80\x9cin violation of\xe2\x80\x9d the EPA\xe2\x80\x99s\nperformance standard. 33 U.S.C. \xc2\xa7 1316(e).\nCoeur Alaska and the State of Alaska intervened as defendants. Both sides moved for\nsummary judgment. The District Court granted summary judgment in favor of the\ndefendants. The Court of Appeals for the Ninth Circuit reversed and ordered the District\nCourt to vacate the Corps of Engineers\xe2\x80\x99 permit. Southeast Alaska Conservation Council v.\nUnited States Army Corps of Engs., 486 F.3d 638, 654\xe2\x80\x93655 (2007).\nThe Court of Appeals concluded that Coeur Alaska required a \xc2\xa7 402 permit for its slurry\ndischarge, that the Corps lacked authority to issue such a permit under \xc2\xa7 404, and that the\nproposed discharge was unlawful because it would violate the EPA new source\nperformance standard and \xc2\xa7 306(e).\nThe decision of the Court of Appeals in effect reallocated the division of responsibility that\nthe Corps and the EPA had been following. The Court granted certiorari. We now hold that\nthe decision of the Court of Appeals was incorrect.\nII\nThe question of which agency has authority to consider whether to permit the slurry\ndischarge is our beginning inquiry. We consider first the authority of the EPA and second\nthe authority of the Corps. Our conclusion is that under the CWA the Corps had authority to\ndetermine whether Coeur Alaska was entitled to the permit governing this discharge.\n\n210\n\n\x0cA\nSection 402 gives the EPA authority to issue \xe2\x80\x9cpermit[s] for the discharge of any pollutant,\xe2\x80\x9d\nwith one important exception: The EPA may not issue permits for fill material that fall under\nthe Corps\xe2\x80\x99 \xc2\xa7 404 permitting authority. * * *\nSection 402 thus forbids the EPA from exercising permitting authority that is \xe2\x80\x98provided [to\nthe Corps] in \xc2\xa7 404.\n***\nThe Act is best understood to provide that if the Corps has authority to issue a permit for a\ndischarge under \xc2\xa7 404, then the EPA lacks authority to do so under \xc2\xa7 402.\nEven if there were ambiguity on this point, the EPA\xe2\x80\x99s own regulations would resolve it.\nThose regulations provide that \xe2\x80\x9c[d]ischarges of dredged or fill material into waters of the\nUnited States which are regulated under section 404 of CWA\xe2\x80\x9d \xe2\x80\x9cdo not require permits\xe2\x80\x9d from\nthe EPA. 40 C.F.R. \xc2\xa7 122.3.\nIn SEACC\xe2\x80\x99s view, this regulation implies that some \xe2\x80\x9cfill material\xe2\x80\x9d discharges are not\nregulated under \xc2\xa7 404\xe2\x80\x94else, SEACC asks, why would the regulation lack a comma before\nthe word \xe2\x80\x9cwhich,\xe2\x80\x9d and thereby imply that only a subset of \xe2\x80\x9cdischarges of \xe2\x80\xa6 fill material\xe2\x80\x9d are\n\xe2\x80\x9cregulated under section 404.\xe2\x80\x9d Ibid.\nThe agencies, however, have interpreted this regulation otherwise. In the agencies\xe2\x80\x99 view\nthe regulation essentially restates the text of \xc2\xa7 402, and forbids the EPA from issuing\npermits for discharges that \xe2\x80\x9care regulated under section 404.\xe2\x80\x9d 40 C.F.R. \xc2\xa7 122.3(b); cf.\nCWA \xc2\xa7 402(a) (\xe2\x80\x9c[e]xcept as provided in \xe2\x80\xa6 [\xc2\xa7 404], the Administrator may . . . issue a\npermit\xe2\x80\x9d). Before us, the EPA confirms this reading of the regulation. Brief for Federal\nRespondents 27. The agency\xe2\x80\x99s interpretation is not \xe2\x80\x9cplainly erroneous or inconsistent with\nthe regulation\xe2\x80\x9d; and so we accept it as correct. Auer v. Robbins, 519 U.S.452, 461 (1997)\n(internal quotation marks omitted).\nThe question whether the EPA is the proper agency to regulate the slurry discharge thus\ndepends on whether the Corps of Engineers has authority to do so. If the Corps has\nauthority to issue a permit, then the EPA may not do so. We turn to the Corps\xe2\x80\x99 authority\nunder \xc2\xa7 404.\nB\nSection 404(a) gives the Corps power to \xe2\x80\x9cissue permits \xe2\x80\xa6 for the discharge of dredged or\nfill material.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(a). As all parties concede, the slurry meets the definition of\nfill material agreed upon by the agencies in a joint regulation promulgated in 2002. That\n211\n\n\x0cregulation defines \xe2\x80\x9cfill material\xe2\x80\x9d to mean any \xe2\x80\x9cmaterial [that] has the effect of \xe2\x80\xa6 [c]hanging\nthe bottom elevation\xe2\x80\x9d of water\xe2\x80\x94a definition that includes \xe2\x80\x9cslurry, or tailings or similar\nmining-related materials.\xe2\x80\x9d 40 C.F.R. \xc2\xa7 232.2.\nSEACC concedes that the slurry to be discharged meets the regulation\xe2\x80\x99s definition of fill\nmaterial. Brief for Respondent SEACC et al. 20. Its concession on this point is appropriate\nbecause slurry falls well within the central understanding of the term \xe2\x80\x9cfill,\xe2\x80\x9d as shown by the\nexamples given by the regulation. See 40 C.F.R. \xc2\xa7 232.2 (\xe2\x80\x9cExamples of such fill material\ninclude, but are not limited to: rock, sand, soil, clay \xe2\x80\xa6 .\xe2\x80\x9d). The regulation further excludes\n\xe2\x80\x9ctrash or garbage\xe2\x80\x9d from its definition. Ibid. SEACC expresses a concern that Coeur Alaska\xe2\x80\x99s\ninterpretation of the statute will lead to \xc2\xa7404 permits authorizing the discharges of other\nsolids that are now restricted by EPA standards. Brief for Respondent SEACC et al. 44\xe2\x80\x9345\n(listing, for example, \xe2\x80\x9cfeces and uneaten feed,\xe2\x80\x9d \xe2\x80\x9clitter,\xe2\x80\x9d and waste produced in \xe2\x80\x9cbattery\nmanufacturing\xe2\x80\x9d). But these extreme instances are not presented by the cases now before\nus. If, in a future case, a discharger of one of these solids were to seek a \xc2\xa7 404 permit, the\ndispositive question for the agencies would be whether the solid at issue\xe2\x80\x94for instance,\n\xe2\x80\x9cfeces and uneaten feed\xe2\x80\x9d\xe2\x80\x94came within the regulation\xe2\x80\x99s definition of \xe2\x80\x9cfill.\xe2\x80\x9d SEACC cites no\ninstance in which the agencies have so interpreted their fill regulation. If that instance did\narise, and the agencies were to interpret the fill regulation as SEACC fears, then SEACC\ncould challenge that decision as an unlawful interpretation of the fill regulation; or SEACC\ncould claim that the fill regulation as interpreted is an unreasonable interpretation of \xc2\xa7 404.\nThe difficulties are not presented here, however, because the slurry meets the regulation\xe2\x80\x99s\ndefinition of fill.\nRather than challenge the agencies\xe2\x80\x99 decision to define the slurry as fill, SEACC instead\ncontends that \xc2\xa7 404 contains an implicit exception. According to SEACC, \xc2\xa7 404 does not\nauthorize the Corps to permit a discharge of fill material if that material is subject to an EPA\nnew source performance standard.\nBut \xc2\xa7 404\xe2\x80\x99s text does not limit its grant of power in this way. Instead, \xc2\xa7 404 refers to all \xe2\x80\x9cfill\nmaterial\xe2\x80\x9d without qualification. Nor do the EPA regulations support SEACC\xe2\x80\x99s reading of\n\xc2\xa7 404. The EPA has enacted guidelines, pursuant to \xc2\xa7 404(b), to guide the Corps\npermitting decision. 40 C.F.R. pt. 230. Those guidelines do not strip the Corps of power to\nissue permits for fill in cases where the fill is also subject to an EPA new source\nperformance standard.\nSEACC\xe2\x80\x99s reading of \xc2\xa7 404 would create numerous difficulties for the regulated industry. As\nthe regulatory regime stands now, a discharger must ask a simple question\xe2\x80\x94is the\nsubstance to be discharged fill material or not? The fill regulation, 40 C.F.R. \xc2\xa7 232.2, offers\na clear answer to that question; and under the agencies\xe2\x80\x99 view, that answer decides the\nmatter\xe2\x80\x94if the discharge is fill, the discharger must seek a \xc2\xa7 404 permit from the Corps; if\nnot, only then must the discharger consider whether any EPA performance standard\napplies, so that the discharger requires a \xc2\xa7 402 permit from the EPA.\n212\n\n\x0cUnder SEACC\xe2\x80\x99s interpretation, however, the discharger would face a more difficult problem.\nThe discharger would have to ask\xe2\x80\x94is the fill material also subject to one of the many\nhundreds of EPA performance standards, so that the permit must come from the EPA, not\nthe Corps? The statute gives no indication that Congress intended to burden industry with\nthat confusing division of permit authority.\nThe regulatory scheme discloses a defined, and workable, line for determining whether the\nCorps or the EPA has the permit authority. Under this framework, the Corps of Engineers,\nand not the EPA, has authority to permit Coeur Alaska\xe2\x80\x99s discharge of the slurry.\n[In Part III of the opinion, the Court determined that the Corps did not act unlawfully by\nfailing to include conditions in the Section 404 permit that would be necessary to comply\nwith the new source performance standards of Section 306 of the Clean Water Act.]\n***\nJustice Ginsburg, with whom Justice Stevens and Justice Souter join, dissenting:\nPetitioner Coeur Alaska, Inc., proposes to discharge 210,000 gallons per day of mining\nwaste into Lower Slate Lake, a 23-acre subalpine lake in Tongass National Forest. The\n\xe2\x80\x9ctailings slurry\xe2\x80\x9d would contain concentrations of aluminum, copper, lead, and mercury. Over\nthe life of the mine, roughly 4.5 million tons of solid tailings would enter the lake, raising the\nbottom elevation by 50 feet. It is undisputed that the discharge would kill all of the lake\xe2\x80\x99s\nfish and nearly all of its other aquatic life.1\nCoeur Alaska\xe2\x80\x99s proposal is prohibited by the Environmental Protection Agency (EPA)\nperformance standard forbidding any discharge of process wastewater from new \xe2\x80\x9cfrothflotation\xe2\x80\x9d mills into waters of the United States. See 40 C.F.R. \xc2\xa7 440.104(b)(1) (2008).\nSection 306 of the Clean Water Act directs EPA to promulgate such performance\nstandards, 33 U.S.C. \xc2\xa7 1316(a), and declares it unlawful for any discharger to violate them,\n\xc2\xa7 1316(e). Ordinarily, that would be the end of the inquiry.\nCoeur Alaska contends, however, that its discharge is not subject to EPA\xe2\x80\x99s regulatory\nregime, but is governed, instead, by the mutually exclusive permitting authority of the Army\nCorps of Engineers. The Corps has authority, under \xc2\xa7 404 of the Act, \xc2\xa7 1344(a), to issue\npermits for discharges of \xe2\x80\x9cdredged or fill material.\xe2\x80\x9d By regulation, a discharge that has the\neffect of raising a water body\xe2\x80\x99s bottom elevation qualifies as \xe2\x80\x9cfill material.\xe2\x80\x9d See 33 C.F.R.\n1\n\nWhether aquatic life will eventually be able to inhabit the lake again is uncertain. Compare\nante, at 5, with App. 201a\xe2\x80\x93202a; and Southeast Alaska Conservation Council v. United\nStates Army Corps of Engineers, 486 F.3d 638, 642 (9th Cir. 2007).\n213\n\n\x0c\xc2\xa7 323.2(e) (2008). Discharges properly within the Corps\xe2\x80\x99 permitting authority, it is\nundisputed, are not subject to EPA performance standards. See ante, at 20; Brief for\nPetitioner Coeur Alaska 26; Brief for Respondent Southeast Alaska Conservation Council\net al. 37.\nThe litigation before the Court thus presents a single question: Is a pollutant discharge\nprohibited under \xc2\xa7 306 of the Act eligible for a \xc2\xa7 404 permit as a discharge of fill material?\nIn agreement with the Court of Appeals, I would answer no. The statute\xe2\x80\x99s text, structure,\nand purpose all mandate adherence to EPA pollution-control requirements. A discharge\ncovered by a performance standard must be authorized, if at all, by EPA.\nI\nA\nCongress enacted the Clean Water Act in 1972 \xe2\x80\x9cto restore and maintain the chemical,\nphysical, and biological integrity\xe2\x80\x9d of the waters of the United States. 33 U.S.C. \xc2\xa7 1251(a).\n\xe2\x80\x9cThe use of any river, lake, stream or ocean as a waste treatment system,\xe2\x80\x9d the Act\xe2\x80\x99s\ndrafters stated, \xe2\x80\x9cis unacceptable.\xe2\x80\x9d S. Rep. No. 92\xe2\x80\x93414, p. 7 (1971). Congress announced in\nthe Act itself an ambitious objective: to eliminate, by 1985, the discharge of all pollutants\ninto the Nation\xe2\x80\x99s navigable waters. 33 U.S.C. \xc2\xa7 1251(a).\nIn service of its goals, Congress issued a core command: \xe2\x80\x9c[T]he discharge of any pollutant\nby any person shall be unlawful,\xe2\x80\x9d except in compliance with the Act\xe2\x80\x99s terms. \xc2\xa7 1311(a). * * *\nThe Act instructs EPA to establish various technology-based, increasingly stringent effluent\nlimitations for categories of point sources. E.g., \xc2\xa7\xc2\xa7 1311, 1314. These limitations,\nformulated as restrictions \xe2\x80\x9con quantities, rates, and concentrations of chemical, physical,\nbiological, and other constituents,\xe2\x80\x9d \xc2\xa7 1362(11), were imposed to achieve national uniformity\namong categories of sources. See, e.g., E. I. du Pont de Nemours & Co. v. Train, 430 U.S.\n112, 129\xe2\x80\x93130 (1977). The limitations for a given discharge depend on the type of pollutant\nand source at issue. * * *\nOf key importance, new sources must meet stringent \xe2\x80\x9cstandards of performance\xe2\x80\x9d adopted\nby EPA under \xc2\xa7 306. That section makes it \xe2\x80\x9cunlawful for any \xe2\x80\xa6 new source to operate \xe2\x80\xa6 in\nviolation of\xe2\x80\x9d an applicable performance standard. 33 U.S.C. \xc2\xa7 1316(e) (emphasis added). In\nline with Congress\xe2\x80\x99 aim \xe2\x80\x9cto insure \xe2\x80\xa6\xe2\x80\x98maximum feasible control of new sources,\xe2\x80\x99 \xe2\x80\x9d du Pont,\n430 U.S., at 138, the preferred standard for a new source is one \xe2\x80\x9c \xe2\x80\x98permitting no discharge\nof pollutants,\xe2\x80\x99 \xe2\x80\x9d id., at 137\xe2\x80\x93138 (quoting 33 U.S.C. \xc2\xa7 1316(a)(1) (emphasis added)).\nMoreover, new sources, unlike existing sources, are not eligible for EPA-granted variances\nfrom applicable limitations. 430 U.S., at 138. * * *\nIn 1982, EPA promulgated new source performance standards for facilities engaged in\n214\n\n\x0cmining, including those using a froth-flotation milling process. See Ore Mining and Dressing\nPoint Source Category Effluent Limitations Guidelines and New Source Performance\nStandards, 47 Fed. Reg. 54598 (1982). Existing mills, the Agency found, were already\nachieving zero discharge; it was therefore practicable, EPA concluded, for new mills to do\nas well. Id., at 54602. Accordingly, under 40 C.F.R. \xc2\xa7 440.104(b)(1), new mines using the\nfroth-flotation method, as Coeur Alaska proposes to do, may not discharge wastewater\ndirectly into waters of the United States.\nB\nThe nationwide pollution-control requirements just described are implemented through the\nNational Pollution Discharge Elimination System (NPDES), a permitting scheme set forth in\n\xc2\xa7 402 and administered by EPA and the States. The NPDES is the linchpin of the Act, for it\ntransforms generally applicable effluent limitations into the individual obligations of each\ndischarger. EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205\n(1976). The discharge of a pollutant is generally prohibited unless the source has obtained\na NPDES permit. E.g., EPA v. National Crushed Stone Assn., 449 U.S. 64, 71 (1980)\n(\xe2\x80\x9cSection 402 authorizes the establishment of the [NPDES], under which every discharger\nof pollutants is required to obtain a permit.\xe2\x80\x9d).\nThe Act also establishes a separate permitting scheme, administered by the Corps, for\ndischarges of \xe2\x80\x9cdredged or fill material.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(a). Section 404 hews to the\nCorps\xe2\x80\x99 established expertise in matters of navigability and construction. The \xc2\xa7 404 program\ndoes not implement the uniform, technology-based pollution-control standards set out, inter\nalia, in \xc2\xa7 306. Instead, \xc2\xa7 404 permits are subject to regulatory guidelines based generally\non the impact of a discharge on the receiving environment. See \xc2\xa7 1344(b); ante, at 4\xe2\x80\x935.\nAs the above-described statutory background indicates, Coeur Alaska\xe2\x80\x99s claim to a \xc2\xa7 404\npermit carries weighty implications. If eligible for that permit, Coeur Alaska can evade the\nexacting performance standard prescribed by EPA for froth-flotation mills. It may, instead,\nuse Lower Slate Lake \xe2\x80\x9cas the settling pond and disposal site for the tailings.\xe2\x80\x9d App. 360a\n(Corps\xe2\x80\x99 Record of Decision).\nII\nIs a pollutant discharge prohibited under \xc2\xa7 306(e) eligible to receive a \xc2\xa7 404 permit as a\ndischarge of fill material? All agree on preliminary matters. Only one agency, the Corps or\nEPA, can issue a permit for the discharge. See ante, at 10, 22. Only EPA, through the\nNPDES program, issues permits that implement \xc2\xa7 306. See supra, at 2. Further, \xc2\xa7 306(e)\nand EPA\xe2\x80\x99s froth-flotation performance standard, unless inapplicable here, bar Coeur\nAlaska\xe2\x80\x99s proposed discharge. See ante, at 14\xe2\x80\x9315.\nNo part of the statutory scheme, in my view, calls into question the governance of EPA\xe2\x80\x99s\n215\n\n\x0cperformance standard. The text of \xc2\xa7 306(e) states a clear proscription: \xe2\x80\x9c[I]t shall be unlawful\nfor any owner or operator of any new source to operate such source in violation of any\nstandard of performance applicable to such source.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1316(e). Under the\nstandard of performance relevant here, \xe2\x80\x9cthere shall be no discharge of process wastewater\nto navigable waters from mills that use the froth-flotation process\xe2\x80\x9d for mining gold. 40\nC.F.R. \xc2\xa7 440.104(b)(1). The Act imposes these requirements without qualification.\nSection 404, stating that the Corps \xe2\x80\x9cmay issue permits\xe2\x80\x9d for the discharge of \xe2\x80\x9cdredged or fill\nmaterial,\xe2\x80\x9d does not create an exception to \xc2\xa7 306(e)\xe2\x80\x99s plain command. 33 U.S.C. \xc2\xa7 1344(a).\nCf. ante, at 12. Section 404 neither mentions \xc2\xa7 306 nor states a contrary requirement. The\nAct can be home to both provisions, with no words added or omitted, so long as the\ncategory of \xe2\x80\x9cdredged or fill material\xe2\x80\x9d eligible for a \xc2\xa7 404 permit is read in harmony with\n\xc2\xa7 306. Doing so yields a simple rule: Discharges governed by EPA performance standards\nare subject to EPA\xe2\x80\x99s administration and receive permits under the NPDES, not \xc2\xa7 404.\nThis reading accords with the Act\xe2\x80\x99s structure and objectives. It retains, through the NPDES,\nuniform application of the Act\xe2\x80\x99s core pollution-control requirements, and it respects\nCongress\xe2\x80\x99 special concern for new sources. Leaving pollution-related decisions to EPA,\nmoreover, is consistent with Congress\xe2\x80\x99 delegation to that agency of primary responsibility to\nadminister the Act. Most fundamental, adhering to \xc2\xa7 306(e)\xe2\x80\x99s instruction honors the\noverriding statutory goal of eliminating water pollution, and Congress\xe2\x80\x99 particular rejection of\nthe use of navigable waters as waste disposal sites. See supra, at 2\xe2\x80\x933. See also 33 U.S.C.\n\xc2\xa7 1324 (creating \xe2\x80\x9cclean lakes\xe2\x80\x9d program requiring States to identify and restore polluted\nlakes). * * *\nQuestions and Comments\n1.\n\nDid the case involve any addition of pollutants into wetlands? If not, does it have any\nimplications for disposal of slurry and mining waste in wetlands?\n\n2.\n\nIn its recitation of the facts, the majority indicates that the Corps determined that\ndisposal of the slurry in Lower Slate Lake was the \xe2\x80\x9cleast environmentally damaging\npracticable\xe2\x80\x9d way to dispose of the tailings and the court contrasted the harm that\nwould be caused to the lake with the permanent loss of wetlands that would occur\nunder one of the alternative proposals that involved storing the tailings near the\nmine in a \xe2\x80\x9cdry tailings facility.\xe2\x80\x9d However, the Court does not mention that the \xe2\x80\x9cdry\ntailings facility\xe2\x80\x9d alternative would destroy the most common types of wetlands in\nAlaska, while the activities associated with disposal in the Lake would affect a\ngreater variety of wetland types. See U.S. Department of Agriculture, U.S.\nEnvironmental Protection Agency, U.S. Army Corps of Engineers, Alaska\nDepartment of Natural Resources, Kensington Gold Project, Final Environmental\nImpact Statement \xc2\xa7 4.12.3 (Dec. 2004). EPA determined that the alternative\n216\n\n\x0cinvolving the construction of the \xe2\x80\x9cdry tailings facility\xe2\x80\x9d was the \xe2\x80\x9cenvironmentally\npreferred alternative.\xe2\x80\x9d Id. at 5. The Court also indicates that EPA deferred to the\nCorps\xe2\x80\x99 determination that the disposal of the tailings in the Lake was\n\xe2\x80\x9cenvironmentally preferable\xe2\x80\x9d because EPA did not veto the Corps permit. Do you\nagree? What is the standard for EPA\xe2\x80\x99s exercise of its veto? See 33 U.S.C.\n\xc2\xa7 1344(c). What considerations impact EPA\xe2\x80\x99s decision regarding whether to veto a\nCorps permit? Chapter 8 of this book examines EPA\xe2\x80\x99s veto authority in detail.\n3.\n\nThe case involves two questions: (a) whether the Corps or EPA has authority to\nissue a permit for the addition of the slurry to the Lower Slate Lake; and (b) whether\nthe Corps acted in accordance with the law when it issued the Section 404 permit to\nCoeur. With regard to the first question, does the Court address the question\nwhether the slurry is \xe2\x80\x9cfill\xe2\x80\x9d material under the Corps\xe2\x80\x99 regulatory definition and, if so,\nwhether the regulatory definition is within the Corps\xe2\x80\x99 authority under the Clean Water\nAct? If not, why not?\n\n4.\n\nWhat is the basis for SEACC\xe2\x80\x99s argument that the Corps does not have authority\nunder Section 404 to issue permits for the disposal of the mine slurry in Lower Slate\nLake? On what tools of statutory interpretation does the majority rely to conclude\nthat the Corps can issue such permits? In light of the approach taken by the\nmajority, could EPA change its interpretation of the statute and assert jurisdiction\nover disposal activities like Coeur\xe2\x80\x99s in the future? Does the dissent agree with the\nmajority that industries like the mining industry would find it difficult to determine\nwhether EPA had adopted technology based standards that applied to their pollution\ndischarges?\n\n5.\n\nDoes the Court\xe2\x80\x99s decision provide industries with an end run around EPA\xe2\x80\x99s\ntechnology-based standards? If EPA issued the permit under section 402, rather\nthan the Corps issuing the permit under Section 404, the permit would prohibit\nCoeur from discharging any \xe2\x80\x9cprocess wastewater\xe2\x80\x9d from the mine into the Lake. On\nwhat statutory interpretation tools does the dissent rely to determine that EPA,\nrather than the Corps, should issue permits for discharges of fill material by\nindustries when EPA has adopted technology based standards that apply to those\nindustries?\n\n6.\n\nOn the second question, regarding whether the Corps acted within its authority in\nissuing a Section 404 permit for the disposal of the mine slurry without requiring the\npermittee to comply with EPA\xe2\x80\x99s technology based standards, the majority concluded\nthat the statute and regulations were ambiguous, but that the agencies\xe2\x80\x99\ninterpretation of the ambiguous regulations was reasonable and entitled to Auer\ndeference. While Justice Scalia concurred in the result, he wrote separately to\ncriticize the majority\xe2\x80\x99s approach. He pointed out that United States v. Mead, 533\nU.S. 218 (2001), a case from which he dissented, limited the situations in which\n217\n\n\x0cChevron deference applied. See Coeur Alaska, Inc. v. Southeast Alaska\nConservation Council, 557 U.S. 261, 295 (Scalia, dissenting). Although he\ndisagreed with Mead, Scalia criticized the majority for, in essence, creating an end\nrun around Mead by holding that the agencies\xe2\x80\x99 interpretation of the Clean Water Act\nwas not entitled to Chevron deference but according the agencies a similar degree\nof deference in reviewing their interpretation of their regulations. Id. He argued that\nthe Court should not accord agencies Auer deference when the statute and\nregulation being interpreted are both ambiguous. Id. Nevertheless, he concurred\nwith the majority\xe2\x80\x99s ruling, because he thought that the agencies actions were\nreasonable, and he wrote, \xe2\x80\x9cI favor overruling Mead. Failing that, I am pleased to join\nan opinion that effectively ignores it.\xe2\x80\x9d 557 U.S. at 296.\n7.\n\nPost-script: The Kensington Mine began operations on July 3, 2010 and currently\nhas over 300 employees. Operating costs at the mine for 2013 were $890 per\nounce. See Coeur Mining, Kensington, Alaska. In 2006, before the mine started\noperations, it paid a fine of $18,334 to EPA for stormwater violations associated with\nconstruction. See Elizabeth Bluemink, Kensington Gold Mine Operator to Pay\n$170,000 Federal Fine, Anchorage Daily News (Dec. 15, 2010). The following year,\nit began discharging sediment and acidic stormwater into a nearby creek in violation\nof the Clean Water Act. Id. EPA discovered the violations the following year and the\nmine operator paid a $170,000 fine in 2010 for violations between 2006 and 2010.\nId.\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished the material covering activities regulated under Section 404,\nwhy not try a CALI lesson on the material at http://cca.li/PV. It should only take about\na half hour or less.\n\n218\n\n\x0cChapter 6\nSection 404 Permits\nThe cornerstone of federal wetlands protection is the Clean Water Act Section 404 permit\nprogram. Chapters 4 and 5 of this book outlined the scope of activities that require a\nSection 404 permit, but this Chapter will begin with a brief explanation of a few statutory\nexemptions to the permit requirement that were not discussed in those chapters. Most of\nthe chapter, though, focuses on the processes and standards for the two types of Section\n404 permits: General Permits and Individual Permits.\n\nI.\n\nPermit Exemptions\n\nSection 404(f)(1) of the\nClean Water Act exempts\nfrom the Section 404 permit\nrequirement several categories of activities that are\nprimarily associated with\nfarming. Section 404(f)(1)(A),\nfor instance, exempts discharges associated with\n\xe2\x80\x9cnormal farming, silviculture,\nand ranching activities such\nas plowing, seeding, cultivating, minor drainage, harvesting for the production of\nfood, fiber and forest products, or upland soil and\nwater conservation projects\xe2\x80\x9d.\nThe exemptions in Section\n404(f)(1), though, are tem- Photo 31 USDA Photo pered by a \xe2\x80\x9crecapture\xe2\x80\x9d pro- http://commons.wikimedia.org/wiki/File:GreenCountyWI.jpg\nvision in Section 404(f)(2), which requires a permit for the activities if they are carried out\nfor the purpose of changing the use of the property and they impair the flow or circulation of\nnavigable waters or reduce their reach. The exemption for \xe2\x80\x9cnormal farming, silviculture and\nranching activities\xe2\x80\x9d is described in the following excerpt.\n\n219\n\n\x0cUnited States v. Huebner\n752 F.2d 1235\n(7th Cir. 1985)\n\nResources for the Case\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\n\nBauer, Circuit Judge\nIn 1978, pursuant to litigation commenced under the Clean Water Act (CWA), * * * by the\nUnited States Army Corps of Engineers (Corps), defendants Roland G. Huebner, William\nHuebner and the Petenwell Potato Farms (Huebners), entered into a consent decree with\nthe Corps regarding the maintenance of the wetlands on their property. In 1983, following a\nsix-day hearing, the district court found the Huebners in contempt of the 1978 order and\nordered them to comply with a restoration plan developed by the Corps. The Huebners\nappeal the lower court\'s contempt order and restoration plan. We affirm the district court\'s\nfinding of contempt * * *\nIn 1977, the Huebners, owners of a 4,000 acre vegetable farm, acquired "Bear Bluff\nFarms," a 5,000 acre property in Jackson County, Wisconsin, the largest continuous area\nof wetlands in Wisconsin. * * * Since the turn of the century Bear Bluff has been used\nintermittently for a variety of agricultural purposes, including the production of dryland\ncrops, such as corn and oats. For the twenty years preceding the Huebners\' ownership,\nhowever, only cranberries have been grown on the land. * * * The record indicates that the\nHuebners intended to expand the cranberry operations of Bear Bluff Farms and to use a\nportion of the farm for growing vegetables and other upland crops.\nIn 1977, the Huebners began to plow sections of the farm to clear out existing ditches and\ndig new ones. On September 2, 1977, the St. Paul District of the United States Army Corps\nof Engineers issued several cease and desist orders to the Huebners, alleging that their\nditching activities constituted a permitless "discharge of dredged or fill material" into the\nBear Bluff wetlands in violation of section 301 of the Federal Water Pollution Control Act,\n* * * On November 10, 1977 the Corps filed a complaint in the district court seeking a\npermanent injunction and a financial penalty against the Huebners. In June, 1978 the\nparties settled the action by entering into a consent decree approved by District Judge\nJames E. Doyle.\nThe Huebners complied with the immediate restoration provisions of the consent order. On\nNovember 16, 1982, however, the government moved for an order to show cause why the\nHuebners should not be held in contempt for violating the 1978 order. The government,\nthrough its affidavits, charged that dredged material had been placed on the sides of\nBeaver Creek and was sliding into the adjacent wetlands, that a portion of the wetland had\nbeen plowed and furrowed by a marsh plow, and that the dikes of the Hunter\'s Peak,\nJuleane and Unnamed Reservoirs had been leveled and scraped by a bulldozer without\nnotice to the Corps and without any Corps permit allowing such activity. The Huebners had\n220\n\n\x0cplanted barley in a plowed portion of the Hunter\'s Peak, and stated that they intended to\nplant corn.5 * * *\nOn August 4, 1983 the district court entered an order holding the Huebners in civil\ncontempt of the court\'s 1978 consent order on the grounds that the government had proved\nby "clear and convincing evidence" that the Huebners had made permitless discharges of\ndredged and fill material into the Bear Bluff wetlands in violation of the 1978 order. The\nHuebners allege that they are not in contempt of the district court\'s 1978 order because the\nactivities in which they engaged in on their land did not require a Corps permit. They allege\nthat the district court erred in its interpretation of the agricultural exemptions of the CWA, as\nrelevant to the 1978 consent order, in determining when permits are required. * * *\nThe Huebners did not challenge the authority of the Corps to regulate parts of Bear Bluff\nFarms as wetlands in the district court, but argued that their activities were exempt from the\nCWA\'s permit process under Section 1344(f)(1). The district court held that the phrase\n"discharge of dredged or fill material" in the 1978 consent order incorporated the legal\nmeaning of those terms under the CWA and therefore the question of whether the\nHuebners\' permitless activities violated the terms of the 1978 consent decree hinged on the\ncourt\'s interpretation of the scope of Section 1344(f)(1)\'s exemptions. The district court held\nthat "[i]t is clear that the amendments that created the subsection (f) exceptions on which\ndefendants rely were not intended to exempt all farming operations from the permit\nrequirements, but only those whose effect upon wetlands or other waters was so minimal\nas not to warrant federal review and supervision." R. 118, Order at 17-18. The court then\nanalyzed the defendants\' actions in light of the purposes of the Clean Water Act, the intent\nof Congress in enacting the farming exceptions, and the terms of the 1978 order. Our\nreview of the legislative history confirms the conclusion reached by the lower court.\nSection 1344(f)(1) provides exemptions from the permit process for discharges into\nwetlands caused by agricultural activities, such as plowing and the maintenance of dikes,\nponds, and farm roads.* * * The exceptions of Section 1344(f)(1) are subject to section\n1344(f)(2), however, which provides that discharges are not exempt from the permit\nprocess if they bring "an area of the navigable waters into a use to which it was not\npreviously subject, where the flow or circulation of navigable waters may be impaired or the\nreach of such waters be reduced."\nOur review of the legislative history of the agricultural exemptions convinces us that\nbecause of the significance of inland wetlands, which make up eighty-five percent of the\nnation\'s wetlands, * * * Congress intended that Section 1344(f)(1) exempt from the permit\n5\n\nThe Huebners stated that they needed an immediate cash crop to pay for the equipment\ncosts of their dredge and fill activities. R. 51. Cranberries take several years to become fully\nproductive.\n221\n\n\x0cprocess only "narrowly defined activities ... that cause little or no adverse effects either\nindividually or cumulatively [and which do not] convert more extensive areas of water into\ndry land or impede circulation or reduce the reach and size of the water body." 3\nLEGISLATIVE HISTORY at 420 (statement of Rep. Harsha, member of the conference\ncommittee, during House debates). See also id. at 474. The Fifth Circuit also has held that\nSec. 1344(f)(1) was designed to be a "narrow exemption." Avoyelles Sportsmen\'s League,\nInc. v. Marsh, 715 F.2d 897, 925 n.44 (5th Cir.1983).\nRecognizing that "there has been widespread concern that many activities that are normally\nconsidered routine would be prohibited or made extremely difficult because of the complex\nregulatory procedures," 4 LEGISLATIVE HISTORY 897 (statement of Sen. Randolph),\nCongress enacted in the 1977 amendments a delicate balance of exceptions that protected\nwetlands while permitting routine activities to go on unimpeded.\nThe drainages exemption is very clearly intended to put to rest, once and for all, the fears\nthat permits are required for draining poorly drained farm or forest land of which millions of\nacres exist. No permits are required for such drainage. Permits are required only where\nditches or channels are dredged in a swamp, marsh, bog or other truly aquatic area. 4\nLEGISLATIVE HISTORY 1042 (statement of Sen. Muskie). * * * We therefore affirm the\ndistrict court\'s narrow interpretation of the agricultural exemptions and its incorporation of\nthe purpose of those exemptions into the finding of contempt against the Huebners for\nviolation of the 1978 consent decree.\nQuestions and Comments\n1.\n\nNote that the court interpreted the exemption in Section 404(f)(1) narrowly to only\nexempt activities that \xe2\x80\x9ccause little or no adverse effects\xe2\x80\x9d on waters of the United\nStates. Other Circuits have taken a similar approach. See Borden Ranch\nPartnership v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), aff\xe2\x80\x99d by\nan equally divided court, 537 U.S. 99 (2002); United States v. Larkins, 852 F.2d 189\n(6th Cir. 1988). Note, also, that the recapture provision of Section 404(f)(2) focuses\non both the purpose of an activity (\xe2\x80\x9cbringing an area of the navigable waters into a\nuse to which it was not previously subject\xe2\x80\x9d) and the effect of the activity (\xe2\x80\x9cwhere the\nflow or circulation of navigable waters may be impaired or the reach of such waters\nbe reduced\xe2\x80\x9d). For a more general outline of the environmental regulation of farming,\nsee J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27\nEcology L. Q. 263 (2000).\n\n2.\n\nOther exemptions: Section 404(f)(1) also exempts, from the Section 404 permit\nrequirement, discharges associated with maintenance of dikes, dams, levees, and\nsimilar structures (404(f)(1)(B)); construction or maintenance of farm or stock ponds\nor irrigation ditches or maintenance of drainage ditches (404(f)(1)(C)); construction\nof temporary sedimentation basins (404(f)(1)(D)); construction of various farm,\n222\n\n\x0cforest, or mining roads constructed in accordance with best management practices\n(404(f)(1)(E)); and discharges from activities with respect to approved non-point\nsource programs (404(f)(1)(F)).\n3.\n\nRegulations and guidance: The Corps regulations implementing the Section\n404(f)(1) exemptions are codified at 33 C.F.R. \xc2\xa7 323.4 In addition, in May 1990,\nEPA and the Corps issued a joint memorandum addressing the exemptions. See\nU.S. Environmental Protection Agency, U.S. Department of the Army,\nMemorandum: Clean Water Act Section 404 Regulatory Program and Agricultural\nActivities (May 1990). The regulations and memo make it clear that farmers who\nhave been farming wetlands as part of an established, ongoing operation do not\nhave to obtain a Section 404 permit for those activities as long as the farmer doesn\xe2\x80\x99t\nconvert the wetlands to dray land. Id.\n\n4.\n\nInteraction with Swampbuster: The Corps regulatory definition of \xe2\x80\x9cwaters of the\nUnited States\xe2\x80\x9d excludes \xe2\x80\x9cprior converted cropland.\xe2\x80\x9d 33 C.F.R. \xc2\xa7 328.3(a)(8). Thus, if\na wetland was converted to cropland prior to the enactment of the Food Security\nAct, see Chapter 2, infra, and meets the definition of \xe2\x80\x9cprior converted cropland\xe2\x80\x9d, a\nSection 404 permit is not required for activities in that cropland. However, although\nthe Natural Resources Conservation Agency makes determinations regarding the\ndelineation of wetlands and the application of the Swampbuster provisions to\nfarmers, see Chapter 2, infra, the Corps\xe2\x80\x99 regulations explicitly provide that\n\xe2\x80\x9cNotwithstanding the determination of an area\'s status as prior converted cropland\nby any other Federal agency, for the purposes of the Clean Water Act, the final\nauthority regarding Clean Water Act jurisdiction remains with EPA.\xe2\x80\x9d 33 C.F.R.\n\xc2\xa7 328.3(a)(8).\n\nII.\n\nNationwide and Other General Permits\n\nFive years after Congress created the Section 404 permit program, it amended the Clean\nWater Act to authorize the Corps of Engineers to approve the discharge of dredged or fill\nmaterial through general permits, in addition to individual permits. See 33 U.S.C.\n\xc2\xa7 1344(e). Unlike individual permits, persons can often engage in the activities authorized\nby a general permit without applying to the Corps of Engineers for an individualized review\nof their activities and the effect of their activities on the environment. Instead, as long as the\npersons are engaged in activities authorized by the general permit and are complying with\nany terms or conditions of the permit, they do not need to obtain an individual Section 404\npermit. For instance, the Corps of Engineers has issued nationwide general permits that\nauthorize landowners to construct temporary recreational structures, reshape drainage\nditches, build boat ramps and engage in a variety of other activities without applying for\nindividual Section 404 permits, as long as they comply with the conditions in the nationwide\ngeneral permit. See U.S. Army Corps of Engineers, 2017 Nationwide Permits, Conditions,\nDistrict Engineer\xe2\x80\x99s Decision, Further Information, and Definitions.\n223\n\n\x0cLandowners can save significant time and money if their activities are authorized by a\ngeneral permit. Even though some general permits require individualized review, as\ndescribed below, the average time for processing nationwide general permits in 2010 was\n32 days, compared to an average of 221 days for processing individual permit applications.\nSee U.S. Army Corps of Engineers, Reissuance of Nationwide Permits, 77 Fed. Reg.\n10184, 10190 (Feb. 21, 2012). Regarding cost, a 2002 study found that the cost of\npreparing the documentation necessary to undertake activities authorized by a nationwide\npermit was about 1/10 the cost of preparing the documentation necessary for an individual\npermit. See David Sunding & David Zilberman, The Economics of Environmental\nRegulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting\nProcess, 42 Nat. Res. J. 59, 74 (2002).\nMost of the discharges of dredged or fill material that take place every year are authorized\nby general permits, rather than individual permits. In 2007 and 2008, for instance,\napproximately 95% of the discharges that were authorized by a Section 404 permit were\nauthorized by a general permit, rather than an individual permit. See Royal C. Gardner,\nLawyers, Swamps, and Money 102 (Island Press, 2011). There are currently 52 Nationwide\npermits in force, in addition to regional and State-wide general permits. See U.S. Army\nCorps of Engineers, 2017 Nationwide Permits, Conditions, District Engineer\xe2\x80\x99s Decision,\nFurther Information, and Definitions .\nWhile general permits provide many advantages for landowners, the Clean Water Act limits\nthe duration of nationwide permits and other general permits to five years. See 33 U.S.C.\n\xc2\xa7 1344(e)(2). In addition, the Corps has the authority to revoke or modify general permits if\nit determines, after opportunity for a public hearing, \xe2\x80\x9cthat the activities authorized by the\ngeneral permit have an adverse impact on the environment or such activities are more\nappropriately authorized by individual permits.\xe2\x80\x9d Id. Both the Corps and EPA have adopted\ngeneral permit regulations. See 33 C.F.R. Part 325 (Corps\xe2\x80\x99 regulations); 40 C.F.R. \xc2\xa7 230.7\n(EPA\xe2\x80\x99s regulations).\nA.\n\nIssuance of General Permits\n\nThe Clean Water Act authorizes the Corps of Engineers, \xe2\x80\x9cafter notice and opportunity for\npublic hearing\xe2\x80\x9d to issue general permits \xe2\x80\x9con a State, regional or nationwide basis\xe2\x80\x9d, 33\nU.S.C. \xc2\xa7 1344(e), and the agency has issued all of those types of permits. The three\ncategories of general permits that the Corps issues are: (1) nationwide permits; (2) state\nand regional permits; and (3) programmatic general permits. See 33 C.F.R. \xc2\xa7 325.5(c).\nNationwide permits authorize dredge and fill activities on a national basis and the agency\nissues those permits through the traditional notice and comment rulemaking process. See\n33 C.F.R. \xc2\xa7 330.1(b). While nationwide permits are developed at the Corps\xe2\x80\x99 headquarters,\nstate and regional permits are issued by the district or division offices of the Corps of\nEngineers after a public notice and authorize activities within the State or region that issued\n224\n\n\x0cthe permit. See 33 C.F.R. \xc2\xa7 325.3. Programmatic general permits are founded on\nexisting federal, state or local programs to avoid duplication with those programs, so they\nmay be issued on a national, state or regional level. See 33 C.F.R. \xc2\xa7 325.5. In addition to\ngeneral permits, the Corps authorizes some activities through letters of permission,\nanother streamlined alternative to individual permits. Id. \xc2\xa7 325.5(b)(2). The abbreviated\nprocedures for letters of permission do not include a public notice. See 33 C.F.R.\n\xc2\xa7 325.2(e)(1).\nQuestions and Comments\n1.\n\nPublic participation: The level and tone of public comments on the nationwide\npermits has evolved significantly over the years. The first nationwide permits were\nissued by the Corps in 1977 and the Corps received 163 comments on the proposal,\nmost of which were positive comments. See 42 Fed. Reg. 37122, 37130 (July 19,\n1977). When the permits were reissued in 1996, the Corps received 4000 comments\nafter one national public hearing and six regional public hearings. See 61 Fed. Reg.\n65874 (Dec. 13, 1996). By 2007, the number of public comments grew to 22,500,\nsee 72 Fed. Reg. 11092 (March 12, 2007), and in 2017, the Corps received 54,000\ncomments when it reissued the nationwide permits. See 82 Fed. Reg. 1860 (Jan. 6,\n2017). A significant portion of the comments that the Corps received over the last\ndecade were critical of various provisions of the program. How might that impact the\ntime or resources required by the agency to reissue nationwide permits?\n\n2.\n\nPublication of the permits: Until 1996, the nationwide general permits issued by\nthe Corps of Engineers were published in the Federal Register as an Appendix to\nthe nationwide permit regulations at 33 C.F.R. \xc2\xa7 330. When the permits were\nreissued in 1996, however, the agency indicated that from that time forward, the\nnationwide permits would be published in the Federal Register and announced with\nregional conditions in the public notices issued by the Corps\' district offices and\nposted on the Internet. See 61 Fed. Reg. 65874 (Dec. 13, 1996). What are the\nadvantages of publication in that manner?\n\n3.\n\nChallenging NWPs: Is the issuance of nationwide permits a final agency action that\ncan be challenged in court? See National Association of Home Builders v. U.S.\nArmy Corps of Engineers, 417 F.3d 1272 (D.C. Cir. 2005). What other impediments\nmight litigants face if they wanted to make a facial challenge to nationwide permits\nimmediately upon their adoption?\n\n225\n\n\x0cB.\n\nConditions of General Permits\n\nAlthough general permits are issued through a different process than individual permits and\nauthorize activities by numerous actors, as opposed to a single applicant, general permits\nare still Section 404 permits and must comply with the legal requirements that apply to\nthose permits. Accordingly, general permits will include conditions that are necessary to\ncomply with the requirements of the Clean Water Act and any other applicable laws. In\nsome cases, the conditions will even require an individualized review by the Corps of the\nprospective permittee\xe2\x80\x99s proposed activities.\nMost significantly, the permits must include conditions to comply with the Section 404(b)(1)\nguidelines, described in the next section, that were developed by EPA and the Corps to\nestablish the standards that apply to the review and issuance of all Section 404 permits.\nSee 33 U.S.C. \xc2\xa7 1344(e)(1)(A). Thus, some general permits may require landowners to\nmitigate the harm to wetlands caused by their activities by creating, restoring, enhancing or\npreserving other wetlands. See Chapter 7, infra.\nIn addition, as outlined in Part III of this Chapter, depending on the nature and location of\nthe activity being authorized by the Corps, the Coastal Zone Management Act, 16 U.S.C.\n\xc2\xa7\xc2\xa7 1451, et seq., the Endangered Species Act, 16 U.S.C. \xc2\xa7\xc2\xa7 1531, et seq., the National\nHistoric Preservation Act, 16 U.S.C. \xc2\xa7\xc2\xa7 470, et seq., and other laws may require the\nCorps to consult with other agencies or may impose limits on the scope of the activities the\nCorps can authorize when it issues Section 404 permits. In order to comply with those laws,\nthe Corps may consult with the other agencies as part of the process for issuing the\ngeneral permits and the Corps will include conditions in the general permits required by the\nother laws or suggested by the agencies through the consultation process. See U.S. Army\nCorps of Engineers, 2017 Nationwide Permits, Conditions, District Engineer\xe2\x80\x99s Decision,\nFurther Information, and Definitions .\nFor instance, the Clean Water Act includes a process, Section 401 certification, whereby\nStates can veto or impose conditions on a variety of federal permits, including Section 404\npermits, to ensure that the permits comply with State water quality standards. See 33\nU.S.C. \xc2\xa7 1341. To comply with that process, the Corps will frequently seek 401 certification\nfrom States when developing a general permit and the Corps is required to seek such\ncertification before issuing a nationwide permit. See 33 C.F.R. \xc2\xa7 330.4(c)(1). While States\ncan certify that the general permit, as proposed, will meet their water quality standards,\nthey can also refuse certification (in essence, prohibiting the use of the general permit in\ntheir State) or they can require the Corps to include conditions in the general permit to\ncomply with State water quality standards (including a condition that requires approval from\nthe State for individual projects that will be conducted under the general permit.) Id.\n\xc2\xa7 330.4(c). The Corps of Engineers issued a Regulatory Guidance Letter in 1992 to\naddress the relationship between general permits and the Section 401 certification process,\nincluding the conditions that States could appropriately include in those permits. See U.S.\n226\n\n\x0cArmy Corps of Engineers, RGL 92-04, Section 401 Water Quality Certification and Coastal\nZone Management Act Conditions for Nationwide Permits (Sept. 1992).\nWhen developing general permits, the Corps engages in similar consultation with States\nthat have approved Coastal Zone Management Plans to ensure that the permits include\nconditions necessary to comply with the Coastal Zone Management Act. Id. While the\nCorps consults with States and other agencies when developing general permits if another\nstatute requires the Corps to consult when issuing permits, a Corps nationwide permit\nmight not incorporate conditions to comply with all federal, state and local laws, so the\nagency\xe2\x80\x99s regulations clearly provide that nationwide permits \xe2\x80\x9cdo not obviate the need to\nobtain other Federal, state or local permits, approvals or authorizations required by law.\xe2\x80\x9d\nSee 33 C.F.R. \xc2\xa7 330.4(b)(2).\nIn addition to the conditions described above, the Corps frequently includes a condition in\ngeneral permits that requires persons who intend to undertake activities authorized by the\npermit to notify the Corps prior to undertaking those activities (provide a \xe2\x80\x9cpre-construction\nnotification\xe2\x80\x9d). See U.S. Army Corps of Engineers, 2017 Nationwide Permits, Conditions,\nDistrict Engineer\xe2\x80\x99s Decision, Further Information, and Definitions 50. In some cases, the\npermit also includes a condition that precludes persons from undertaking actions\nauthorized by the permit until the Corps has reviewed and approved their proposed action.\nId. at 50-55. Even in those cases, though, the process for the landowner is faster than the\nindividual Section 404 permit process.\nQuestions and Comments\n1.\n\nNational Environmental Policy Act compliance: The National Environmental\nPolicy Act requires federal agencies to prepare an environmental impact\nstatement (EIS) for major federal actions that significantly affect the quality of the\nhuman environment, see 42 U.S.C. \xc2\xa7 4332(2)(C). The EIS examines the\nenvironmental effects of the proposed agency action and alternatives to the agency\naction and is developed with public participation. Id. If it is not clear whether an\naction will have a sufficient impact on the environment to require the preparation of\nan EIS, agencies generally are required to prepare an environmental assessment\n(EA) to determine if an environmental impact statement is necessary. See 40 C.F.R.\n\xc2\xa7 1501.4. An EA is a more streamlined study of the effects of the action and\nalternatives. Id. \xc2\xa7 1508.9. When the agency completes the EA, it will either\ndetermine that the impacts of the action are not significant enough to require an EIS\nand it will issue a \xe2\x80\x9cfinding of no significant impact\xe2\x80\x9d (FONSI) or it will determine\nthat an EIS is necessary, and it will prepare one. Id. \xc2\xa7 1501.4. Since the issuance of\na permit is a federal action under NEPA, the Corps must prepare an EIS or EA when\nissuing a Section 404 permit, either as an individual permit or a general permit.\nWhen the Corps issues nationwide permits or other general permits, it usually\n227\n\n\x0cprepares an EA or EIS for the permit before it provides notice of the proposed permit\nand the Corps provides for the public participation required by NEPA as part of the\ndevelopment of the permit. See 33 C.F.R. \xc2\xa7 330.5(b)(3). Even though the Corps\ngenerally prepares at least an EA when issuing a nationwide permit, courts have\ninvalidated several of the Corps\xe2\x80\x99 general permits on the grounds that the agency\nfailed to prepare adequate environmental analyses under NEPA.\nFor instance, NWP 29, the nationwide permit that the Corps issued to authorize\ndischarges for construction of single family housing was invalidated in 1998 in\nAlaska Center for the Environment v. West, 31 F. Supp. 714 (D. Alaska 1998), but it\nwas subsequently reissued in a modified form. More recently, the United States\nCourt of Appeals for the Sixth Circuit invalidated NWP 21, the nationwide surface\ncoal mining permits that authorized the discharges associated with valley fills\ndiscussed in Chapter 5 of this book, see Kentucky Riverkeeper, Inc. v. Rowelette,\n714 F.3d 402 (6th Cir. 2013).\n2.\n\nModification, Suspension or Revocation of NWPs: As noted above, the Corps\nhas statutory authority to revoke or modify general permits if the agency determines\nthat the activities authorized by the permit have an adverse impact on the\nenvironment or are more appropriately authorized by individual permits. See 33\nU.S.C. \xc2\xa7 1344(e)(2). Accordingly, the Corps\xe2\x80\x99 regulations for nationwide permits\nprovide that the agency can modify the permits (by imposing additional or revised\nterms or conditions on the permit), suspend the permits or revoke the permits for a\ngeographic area, class of activity, class of waters, or even for specific individual\nactivities. See 33 C.F.R. \xc2\xa7 330.4(e).\n\n3.\n\nExpiring RGLs: RGL 92-04, and some of the other RGLs cited in this book, may\nhave technically expired, but the Corps issued a regulatory guidance letter in 2005\nthat provides that many of the RGLs that technically have expired \xe2\x80\x9cprovide useful\ninformation and ... are still generally applicable to current program execution\xe2\x80\x9d. See\nU.S. Army Corps of Engineers, RGL 05-06, Expired Regulatory Guidance Letters 23 (Dec. 7, 2005). RGL 92-04 and the other RGLs cited in this book are in the\ncategory of RGLs listed in RGL 05-06 as \xe2\x80\x9cstill generally applicable\xe2\x80\x9d. Id.\n\n228\n\n\x0cResearch Problems\n1. The Wilson family live just outside of Savannah, Georgia on a 5 acre lot. George and Martha\nWilson would like to build a pond in a wet portion of their back yard to attract birds and other\nwildlife. Unfortunately, in order to construct the pond, they will be placing fill material in the\nwetlands on their property. The company that will be building the pond has indicated that the\nconstruction will likely impact about 1 acre of wetlands and the surface area of the pond will be\nabout 2 acres. Before the Wilsons begin work on the pond, they have sought your advice regarding\nwhether they need to apply for an individual Section 404 permit or whether a national or regional\ngeneral permit might authorize their project. Assuming that the wetlands are jurisdictional waters of\nthe United States, please advise them accordingly. In addition, if the construction of the pond may\nbe authorized by a general permit, please advise them whether they need to notify the Corps of\nEngineers before they begin the project and whether they will need to provide any compensatory\nmitigation for the impacts to the wetlands.\n2. The Mitchell family would like to build a new ocean-front home in Florida. Construction of the\nfoundation and building pad for the home will require an addition of fill material into tidal wetlands.\nCan the Mitchell\xe2\x80\x99s rely on a nationwide general permit to authorize the construction of their new\nhome? If so, do they need to notify the Corps of Engineers before they begin construction?\n\nC.\n\nSimilar in Nature / Minimal Environmental Effects\n\nThere are limits on the activities that the Corps can authorize through general permits. The\nClean Water Act allows the agency to issue general permits for categories of activities\ninvolving discharge of dredged or fill material if the agency determines that the activities in\nsuch category are similar in nature, will cause only minimal adverse environmental effects\nwhen performed separately, and will have only minimal cumulative adverse effect on the\nenvironment. See 33 U.S.C. \xc2\xa7 1344(e)(1).\n\nActivities that Could Be Covered in a General Permit\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nSimilar in nature\nMinimal adverse effects by the activities individually and\nMinimal adverse effects by the activities cumulatively\n\n229\n\n\x0cThe following case and notes explore the meaning and application of those terms.\nOhio Valley Environmental Coalition v.\nBulen\n\nResources for the Case\nNWPs in effect at the time of the case\nUnedited opinion (From Justia)\nGoogle Map of all of the cases in the coursebook\n\n429 F.3d 493 (4th Cir. 2005)\nLUTTIG, Circuit Judge\n\nThis case presents the question whether the United States Army Corps of Engineers ("the\nCorps") exceeded its authority under the Clean Water Act ("CWA") when it promulgated\nNationwide Permit 21 ("NWP 21"), a general permit for the discharge of dredged or fill\nmaterial into the waters of the United States that allows projects to proceed only after\nreceiving individualized authorization from the Corps. We conclude that the Corps complied\nwith the CWA when it promulgated NWP 21. The contrary judgment of the district court is\ntherefore vacated.\nI\n***\nThe Army Corps of Engineers has authority under the CWA to issue two types of permits\nfor the discharge of dredged or fill material: individual permits and general permits. The\nCorps issues individual permits under section 404(a) on a case-by-case basis for\ndischarges at "specified disposal sites," after providing notice and opportunity for public\nhearing. Id. \xc2\xa7 1344(a). The Corps issues general permits, which authorize "categories of\nactivities" rather than individual projects, under section 404(e). * * *\nPursuant to section 404(e), the Corps has promulgated a number of general permits, all but\none of which authorize projects that comply with the permits\' terms to proceed without prior\napproval by the Corps. The exception, NWP 21 - which authorizes discharges of dredged\nor fill material associated with surface coal mining and reclamation projects - requires that\nprojects be individually authorized by the Corps. NWP 21 authorizes:\ndischarges of dredged or fill material into waters of the U.S. associated with surface\ncoal mining and reclamation operations provided the coal mining activities are\nauthorized by the DOI, Office of Surface Mining (OSM), or by states with approved\nprograms under Title V of the Surface Mining Control and Reclamation Act of 1977\nand provided the permittee notifies the District Engineer in accordance with the\n"Notification" General Condition. In addition, to be authorized by this NWP, the\nDistrict Engineer must determine that the activity complies with the terms and\n230\n\n\x0cconditions of the NWP and that the adverse environmental effects are minimal both\nindividually and cumulatively and must notify the project sponsor of this\ndetermination in writing.\nIssuance of Nationwide Permits, 67 Fed.Reg.2020, 2081 (Jan. 15, 2002).\nIn this litigation, plaintiffs, a coalition of environmental groups, have raised various\nchallenges to NWP 21. The district court did not reach most of those challenges, holding\nsimply that NWP 21 is facially invalid under Chevron U.S.A. Inc. v. Natural Resources\nDefense Council, Inc., 467 U.S. 837 (1984), because it conflicts with the unambiguous\nmeaning of section 404(e). * * * The district court accordingly suspended existing\nauthorizations under NWP 21 and enjoined the Corps from issuing further NWP 21\nauthorizations in the Southern District of West Virginia. * * * This appeal followed.\nII\nThe district court concluded that NWP 21 conflicts with the unambiguous meaning of\nsection 404(e) for essentially four reasons. First, it concluded that NWP 21 "defines a\nprocedure instead of permitting a category of activities." * * * Second, it concluded that\nsection 404(e) "unambiguously requires determination of minimal impact before, not after,\nthe issuance of a nationwide permit," and that, in violation of this requirement, "NWP 21\nprovides for a post hoc, case-by-case evaluation of environmental impact." * * * [The district\ncourt also concluded that the procedure used by the agency was inadequate and that a\ncondition included in the permit was in excess of the agency\xe2\x80\x99s jurisdiction.] None of these\nconclusions withstands scrutiny. * * *\nA\nThe district court first concluded that NWP 21 fails to comply with section 404(e) because it\n"defines a procedure instead of permitting a category of activities." * * * We disagree. NWP\n21 plainly authorizes a "category of activities." The category of activities authorized by NWP\n21 consists of those discharges of dredged or fill material that (1) are associated with\nsurface coal mining and reclamation operations, so long as those operations are authorized\nby the Department of Interior or by states with approved programs under the Surface\nMining Control and Reclamation Act of 1977, (2) are preceded by notice to the Corps, and\n(3) are approved by the Corps after the Corps concludes that the activity complies with the\nterms of NWP 21 and that its adverse environmental effects are minimal both individually\nand cumulatively. * * *\nThe district court erroneously reasoned that NWP 21 does not authorize a "category of\nactivities" because it is defined by procedural requirements "rather than objective\nrequirements or standards." * * * ("NWP 21 imposes no limit on the number of linear feet of\na stream, for example, that might be impacted by a valley fill or surface impoundment. It\n231\n\n\x0cdoes not limit the total acreage of a watershed that might be impacted."). As an initial\nmatter, we note that, by virtue of its incorporation of the requirements of the Surface Mining\nControl and Reclamation Act ("SMCRA"), NWP 21 does contain substantive requirements.1\nMore importantly, nothing in section 404(e) or in logic prohibits, much less unambiguously\nprohibits, the use of procedural, in addition to substantive, parameters to define a\n"category." The district court therefore erred when it concluded that NWP 21 does not\ndefine a "category of activities." * * *\nB\nThe district court next concluded that NWP 21 violates the unambiguous terms of section\n404(e) because it allows the Corps to defer the statutorily-required minimal-environmentalimpact determinations until after issuance of the nationwide permit. * * * 3 Section 404(e)\nallows the Corps to issue a general permit only "if [it] determines ... that the activities in [the\nsubject] category ... will cause only minimal adverse environmental effects when performed\nseparately, and will have only minimal cumulative adverse effect on the environment." 33\nU.S.C. \xc2\xa7 1344(e). The district court concluded that the Corps did not make the required\nminimal-impact determinations before issuing NWP 21, but instead opted to make those\ndeterminations on a case-by-case basis after issuance of the permit. * * *\nIt is clear from the record before us that the Corps did make the required minimal-impact\ndeterminations before it issued NWP 21. * * * The Decision Document for NWP 21 and the\nsupplement to that document, set forth at pages 469-512 of the Joint Appendix, contain the\nCorps\' pre-issuance analysis of the anticipated environmental impact of the activities\nauthorized by NWP 21. * * * The Corps\' impact analysis took account of a variety of factors,\n1\n\nSMCRA imposes a host of "performance standards" on "all surface coal mining and\nreclamation operations." 30 U.S.C. \xc2\xa7 1265(b). For example, under SMCRA, all surface coal\nmining operations must "minimize the disturbances to the prevailing hydrologic balance at\nthe mine-site and in associated offsite areas and to the quality and quantity of water in\nsurface and ground water systems both during and after surface coal mining operations\nand during reclamation." Id. \xc2\xa7 1265(b)(10).\n3\n\nThe Corps argues that section 404(e) does not unambiguously require that the minimalimpact determinations be made before issuance of a nationwide permit. The Corps\nbelieves that the statute allows it to issue a nationwide permit so long as it makes the\nminimal-impact determinations before the permit is actually used to authorize discharges,\neven if after issuance of the permit. At the very least, the Corps argues, section 404(e)\'s\nminimal impact determination requirement is temporally ambiguous, and the Corps\' reading\nis a permissible construction entitled to Chevron deference. Because we conclude that the\nCorps made the required minimal-impact determinations before issuing NWP 21, we do not\nreach these contentions.\n232\n\n\x0cincluding public commentators\' opinions, * * * NWP 21\'s incorporation of SMCRA\'s\nrequirements, * * * the nature of the coal-mining activities authorized by NWP 21, * * * the\napplicability of a variety of General Conditions to NWP 21, * * * and data about usage of\nprevious versions of NWP 21 * * * Based on these considerations and others, the Corps\nconcluded that the activities authorized by NWP 21 "will not result in significant degradation\nof the aquatic environment." * * * This determination was sufficient to meet the\nrequirements of section 404(e).\nThe district court held that the Corps did not satisfy section 404(e) because it did not\nprovide an ex ante guarantee that the activities authorized by NWP 21 would have only a\nminimal impact. The district court reasoned that, under section 404(e), "[t]he issuance of a\nnationwide permit ... functions as a guarantee ab initio that every instance of the permitted\nactivity will meet the minimal impact standard," and that, by permitting the Corps to engage\nin "post hoc, case-by-case evaluation of environmental impact," NWP 21 "runs afoul of the\nstatutory requirement of initial certainty." * * *\nThe district court erred. It is simply not the case that issuance of a general permit functions\nas a guarantee ab initio that every instance of the permitted activity will have only a minimal\nimpact. * * *\nFor two reasons, we do not believe that an interpretation of section 404(e) that would\nrequire initial certainty is tenable. First, section 404(e)(2) gives the Corps authority to\nrevoke or modify a general permit if, after issuing the permit, it "determines that the\nactivities authorized by such general permit have an adverse impact on the environment."\n33 U.S.C. \xc2\xa7 1344(e)(2). This provision demonstrates that Congress anticipated that the\nCorps would make its initial minimal-impact determinations under conditions of uncertainty\nand that those determinations would therefore sometimes be inaccurate, resulting in\ngeneral permits that authorize activities with more-than-minimal impacts. It also\ndemonstrates that Congress expected that the Corps would engage in post-issuance\npolicing of the activities authorized by general permits in order to ensure that their\nenvironmental impacts are minimal. * * *\nSecond, it is impossible for the Corps\' ex ante determinations of minimal impact to be\nanything more than reasoned predictions. Even under the paradigmatic general permit\nenvisioned by the district court, where the parameters of the authorized activities are\ndelineated in objective, measurable terms, the Corps\' minimal-impact determinations would\nnecessarily be a forecast only. This is so because the environmental impact of the activities\nauthorized by a general permit depends on factors that, as a practical matter, are outside\nthe Corps\' ability to predict with certainty ex ante. This uncertainty is especially acute when\nthe Corps issues a nationwide permit like NWP 21 because the Corps must attempt to\nforecast the environmental effects the authorized activities could have if undertaken\nanywhere in the country under any set of circumstances. * * *\n\n233\n\n\x0cNor can we agree with the district court\'s implicit conclusion that the Corps may not rely on\nthe availability of post-issuance procedures, such as NWP 21\'s requirement of postissuance individualized authorization, when it makes its pre-issuance minimal-impact\ndeterminations. * * * The statute is silent on the question whether the Corps may make its\npre-issuance minimal impact determinations by relying in part on the fact that its postissuance procedures will ensure that the authorized projects will have only minimal impacts.\nWe must therefore defer to the Corps\' conclusion that it may do so if that conclusion is\npermissible in light of the statutory language and is reasonable. It is both. * * *\nIn concluding that section 404(e) permits the Corps to rely in part on post-issuance\nprocedures to make its pre-issuance minimal-impact determinations, we do not suggest\nthat section 404(e) permits the Corps completely to defer the minimal-impact\ndeterminations until after issuance of the permit. We would have substantial doubts about\nthe Corps\' ability to issue a nationwide permit that relied solely on post-issuance, case-bycase determinations of minimal impact, with no general pre-issuance determinations. In\nsuch a case, the Corps\' "determinations" would consist of little more than its own promise\nto obey the law. * * *\nHowever, we are satisfied, based on our review of the Corps\' decision document, that the\nCorps did actually make, in advance, the minimal-impact determinations required by the\nstatute. It made those determinations after undertaking a good-faith, comprehensive, preissuance review of the anticipated environmental effects of the activities authorized by\nNWP 21, and its partial reliance on post-issuance procedures to ensure minimal impacts\ndid not make those determinations any less valid. * * *\nIn sum, we conclude that the Corps complied with section 404(e) when it issued NWP 21.\n* * * The contrary judgment of the district court and the injunction against NWP 21\nauthorizations are vacated and the case is remanded for further proceedings not\ninconsistent with this opinion.\nQuestions and Comments\n1.\n\nCategories of activities that are similar in nature / scope and conditions: Are\nthere limits on the breadth of the categories of activities that can be regulated\nthrough a general permit? In the case above, NWP 21 authorized discharges of\ndredged or fill material associated with surface coal mining and reclamation\nactivities if the discharges were authorized under the Surface Mining Control and\nReclamation Act. While that category seems quite broad, the Corps narrowed it by\nlimiting authorization to discharges when the discharger notifies the Corps that it\nplans to discharge under the permit and the Corps affirmatively authorizes the\ndischarge, after reviewing the potential environmental effects of the discharge.\nWould the permit have sufficiently identified a category of activities that are similar in\nnature without the notification and approval procedures? What concerns are raised if\n234\n\n\x0cthe category of activities is defined too broadly? While courts have frequently upheld\nthe authorization of fairly broad categories of activities under general permits, they\nusually have done so after concluding that the conditions in the permit sufficiently\nnarrow the categories so that they are \xe2\x80\x9csimilar in nature.\xe2\x80\x9d In addition to the instant\ncase, see Sierra Club v. U.S. Army Corps of Engineers, 508 F.3d 1332 (11th Cir.\n2007) (upholding a general permit to cover \xe2\x80\x9csuburban development\xe2\x80\x9d activities over a\n48,000 acre area based on the limiting conditions in the permit, but recognizing\nconcerns about circumvention of the notice and public hearing requirements that\nwould apply to individual permitting); Alaska Center for the Environment v. West,\n157 F.3d 680 (9th Cir. 1998) (upholding a general permit that authorized discharges\nassociated with construction of \xe2\x80\x9cresidential buildings\xe2\x80\x9d and a broad range of other\nactivities in the City of Anchorage based on the limiting conditions in the permit).\nPrior to 1996, one of the most widely used nationwide permits that the Corps issued\nwas NWP 26, which authorized a broad range of activities in waters above\nheadwaters and in isolated waters. Many critics argued that the activities authorized\nby that permit were not \xe2\x80\x9csimilar in nature,\xe2\x80\x9d and the Corps replaced the permit with a\nseries of permits that addressed more narrowly tailored categories of activities. See\n61 Fed. Reg. 65874 (Dec. 13, 1996).\n2.\n\nStatutory / regulatory definition of \xe2\x80\x9csimilar in nature\xe2\x80\x9d: Does \xe2\x80\x9csimilar in nature\xe2\x80\x9d\nrefer to the nature of the projects, the nature of the effects, or both? Does the statute\ndefine \xe2\x80\x9csimilar in nature\xe2\x80\x9d? The 404(b)(1) guidelines (regulations) limit the issuance of\ngeneral permits to categories of activities where the activities are similar in nature\nand similar in their impact on water quality and the aquatic environment. See 40\nC.F.R. \xc2\xa7 230.7(a) If the statute is silent and there is a regulation that interprets the\nstatutory language, how does that impact judicial review of the language? See\nAlaska Center for the Environment v. West, 157 F.3d 680 (9th Cir. 1998) (upholding\nCorps determination that a broad range of activities authorized by the general permit\nwere \xe2\x80\x9csimilar in nature\xe2\x80\x9d because they would have similar impacts, when limited by\nthe conditions in the permit).\n\n3.\n\nDocumentation: The 404(b)(1) guidelines require the Corps to prepare a written\nevaluation of the individual and cumulative impacts of the activities that will be\nauthorized by a general permit, to demonstrate that they will be minimal, and an\nexplanation of why the activities to be authorized are \xe2\x80\x9csimilar in nature\xe2\x80\x9d before the\nagency issues the permit. See 40 C.F.R. \xc2\xa7 230.7(b).\n\n4.\n\nMinimal impacts: In a footnote, in Ohio Valley Environmental Coalition v. Bulen, the\ncourt indicated that it would not reach the Corps\xe2\x80\x99 contention that the Clean Water\nAct authorized the Corps to make the minimal impact determination for a general\npermit after the permit is issued, as long as the determination is made before the\npermit is used. If the court does not \xe2\x80\x9creach the contentions\xe2\x80\x9d, does it provide some\n235\n\n\x0cguidance regarding whether the Corps\xe2\x80\x99 interpretation of the statute is reasonable?\n5.\n\nPost-issuance review: As noted above, many of the nationwide permits issued by\nthe Corps of Engineers include a \xe2\x80\x9cpre-construction notification\xe2\x80\x9d requirement, so that\npersons who intend to take actions authorized by the permit must notify the Corps\nprior to undertaking those actions. In most cases, if the actor provides that notice\nand the Corps does not notify them within 45 days that they can\xe2\x80\x99t proceed with their\nactivity, they can undertake the activity authorized by the permit even though the\nCorps did not respond to their notice. See U.S. Army Corps of Engineers, 2017\nNationwide Permits, Conditions, District Engineer\xe2\x80\x99s Decision, Further Information,\nand Definitions General Condition 32. In the Ohio Valley Environmental Coalition v.\nBulen case, above, the presumption was reversed for NWP 21, so that persons\ncould not undertake activities under the permit until the Corps affirmatively\nauthorized the activities.\n\n6.\n\nShould nationwide and other general permits include more stringent limits on the\ntotal acreage of wetlands that can be filled under those permits? See Steven G.\nDavison, General Permits Under Section 404 of the Clean Water Act, 26 Pace Envtl.\nL. Rev. 35 (2009).\n\nD.\n\nCombining permits\n\nIn light of the fact that the Corps has issued many general permits on a national, regional,\nor State-wide basis, questions arise regarding whether a landowner can rely on (1) a\ncombination of general permits; (2) multiple uses of a single general permit; or (3) a\ncombination of general permits and individual permits to authorize discharges of dredged or\nfill material.\nIn situations where a project would require an individual Section 404 permit, the permittee\nmay be able to undertake a portion of the project through a general permit while the Corps\nis processing the individual permit application but only if the portion of the project that\nwould be authorized by the general permit \xe2\x80\x9cwould have independent utility\xe2\x80\x9d and would be\n\xe2\x80\x9cable to function or meet [its] purpose independent of the total project.\xe2\x80\x9d See 33 C.F.R.\n\xc2\xa7 330.6(d).\nFor situations where a developer would like to rely on multiple general permits, rather than\nan individual permit, to authorize a project, the Corps allows persons to combine two or\nmore different nationwide permits, but only if they are being combined to authorize a \xe2\x80\x9csingle\nand complete project.\xe2\x80\x9d Id. \xc2\xa7 330.6(c). If the activities being authorized by the combination of\ngeneral permits are really only part of a larger project and do not have \xe2\x80\x9cindependent utility\xe2\x80\x9d,\nthey are not a \xe2\x80\x9csingle and complete project\xe2\x80\x9d and the Corps\xe2\x80\x99 regulations do not allow\ndevelopers to combine general permits to authorize the activities. See Crutchfield v. County\nof Hanover, Virginia, 325 F.3d 211 (4th Cir. 2003). Similarly, the Corps\xe2\x80\x99 regulations prohibit\n236\n\n\x0cmultiple use of the same nationwide permit on a \xe2\x80\x9csingle and complete project.\xe2\x80\x9d See 33\nC.F.R. \xc2\xa7 330.6(c). The limits that the Corps places on the use of multiple general permits\nare designed to prevent developers from evading the individual permit requirement for a\nproject by segmenting the project into a lot of smaller activities which could qualify for\ngeneral permits. See Crutchfield v. County of Hanover, Virginia, 325 F.3d 211 (4th Cir.\n2003).\nResources\nComplete list of 2017 NWPs and conditions\nChart summarizing the 2017 NWPs and conditions\nFinal Decision Documents supporting the 2017 NWPs\nExamples of Regional and Programmatic permits - Region GP 96-07;\nMaryland Programmatic GP MDSPG-4;\nLetter of Permission Process for California (Sacramento District)\nGeneral permit regulations of the Corps and EPA\n\nSection Quiz\nNow that you\xe2\x80\x99ve finished the material on permit exemptions and general\npermits, why not try a CALI lesson on the material at: http://cca.li/PW. It\nwill only take about fifteen minutes.\n\nIII.\n\nIndividual Permits\n\nAs noted above, most development activities in wetlands are authorized through general\npermits, rather than individual permits. Less than 5% of the projects authorized by the\nCorps each year are authorized through individual permits. See Royal C. Gardner,\nLawyers, Swamps, and Money 102 (Island Press, 2011). Although the individual permit\nprocess is longer and more expensive than the general permit process, in most cases, the\nCorps will issue a permit at the end of the process. In 2007 and 2008, while the Corps\nevaluated more than 150,000 development activities for authorization under individual or\ngeneral permits, it denied fewer than 750 individual permit applications (less than 1%). Id.\nThat permit denial rate has remained fairly constant over the years. For instance, in 1981,\nthe Corps denied 2.7% of the individual permit applications. See U.S. Congress, Office of\nTechnology Assessment, OTA-O-206, Wetlands: Their Use and Regulation 143-144 (Mar.\n1984). Once issued, individual permits generally authorize permittees to leave dredged or\n237\n\n\x0cfill material in wetlands indefinitely, see 33 C.F.R. \xc2\xa7 325.6, but the Corps has the authority\nto modify, suspend or revoke the permits as \xe2\x80\x9cnecessary by considerations of the public\ninterest. Id. \xc2\xa7 325.7.\nA.\n\nThe Process\n\nThe Corps of Engineers reviews and issues\nor denies individual Section 404 permits\nthrough an informal process that involves\npublic participation and review by EPA and\nother federal and state agencies. In most\ncases, the decision whether to issue or deny\nthe permit will be made at the district level,\nby the District Engineer. See 33 C.F.R.\n\xc2\xa7 325.2(a)(6). While the Corps administers\nthe Section 404 permit program, EPA plays\nan important role as well. In addition to\nreviewing and commenting on the individual\npermit applications, EPA, in consultation with\nthe Corps, wrote the rules (the Section\n404(b)(1) guidelines) that the Corps uses to\ndetermine whether to issue or deny permits\nand EPA has the authority to veto the Corps\xe2\x80\x99\npermits. See 33 U.S.C. \xc2\xa7 1344(c) (discussed\nin Chapter 8, infra).\n\nResources\nCorps Video on the permitting process\nDescription of the permit process (Corps\nHQ); (Corps Regional Office)\nGraphical representation of the permit\nprocess (Corps)\n404 Permit application form\n404 Permit application instructions\nFill out a Section 404 application online\nEPA web page re: Section 404 permitting\nSearch for recently issued and pending\nSection 404 permits\n404 permit regulations - Corps; EPA Veto;\nEPA 404(b)(1) Guidelines\n\nSection 404 of the Clean Water Act provides that the Corps \xe2\x80\x9cmay issue permits, after notice\nand opportunity for public hearings for the discharge of dredged or fill material into the\nnavigable waters at specified disposal sites.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1344(a). The Corps has\ninterpreted that language to authorize it to issue permits through an informal process,\nrather than through the formal adjudication procedures of the Administrative Procedures\nAct, and courts have upheld that interpretation. See Buttrey v. United States, 690 F.2d\n1170 (5th Cir. 1982). The Corps\xe2\x80\x99 regulations that address the Section 404 permit process\nare codified at 33 C.F.R. Part 325.\n\n238\n\n\x0c1.\n\nApplication, public notice and comment\n\nThe Corps encourages, but does not require, permit applicants who are proposing major\nprojects to meet with the agency before filing their application for a brief pre-application\nconsultation. See 33 C.F.R. \xc2\xa7 325.1(b). After an applicant files a complete application and\npays the application fee (ranging from $10 - $100), the Corps issues a public notice of the\npermit application and invites public comment on the application. See 33 C.F.R. \xc2\xa7 325.3.\nThe notice is posted online, in the post office or other public buildings in the area, sent to\nthe applicant, adjoining property owners, appropriate federal, state and local agencies, the\nnews media, and a variety of other interested parties and includes information outlined in\nthe regulations that is \xe2\x80\x9csufficient ... to give a clear understanding of the nature and\nmagnitude of the activity to generate meaningful comment.\xe2\x80\x9d Id. \xc2\xa7 325.3(a).\nThe Corps normally provides for a 30 day public comment period and consults with EPA,\nthe Fish and Wildlife Service, and several other agencies during this comment period to\ncomply with other federal laws, as described below. All of the comments that the Corps\nreceives from the public or other agencies are included in the administrative record for the\nagency\xe2\x80\x99s ultimate decision and the agency provides the applicant with an opportunity to\nprovide additional information in response to those comments. See 33 C.F.R. \xc2\xa7 325.2(a)(3).\n2.\n\nCoordination with other agencies\n\nIn light of its authority to veto section 404 permits, see Chapter 8, infra, and its authority to\nbring enforcement actions for illegal discharges of dredged or fill material, see Chapter 10,\ninfra, EPA is involved in the review and commenting process for Section 404 permits at an\nearly stage. As the primary author of the Section 404(b)(1) guidelines, the standards that\nthe Corps will use to evaluate the permit, EPA can provide vital comments regarding\nwhether an application complies with those standards. The Fish and Wildlife Service also\nprovides comments based on its authority under the Fish and Wildlife Coordination Act and\nthe Endangered Species Act, discussed infra, and the National Oceanographic and\nAtmospheric Administration (NOAA), within the Department of Commerce provides\ncomments on permits based on authority in the Endangered Species Act and Coastal Zone\nManagement Act, discussed infra. The Corps has entered into Memoranda of Agreement\nwith EPA, see Memorandum of Agreement Between the Environmental Protection Agency\nand the Department of the Army, Section 404(q) (August 11, 1992), the Fish and Wildlife\nService, see Memorandum of Agreement Between the Department of the Interior and the\nDepartment of the Army, Section 404(q) (December 21, 1992) and NOAA, see\nMemorandum of Agreement Between the Department of Commerce and the Department of\nthe Army, Section 404(q) (December 21, 1992) to coordinate their involvement in the\nreview of permits and to minimize delays in processing the permits, as required by the\nstatute. See 33 U.S.C. \xc2\xa7 1344(q). While the Corps consults with EPA, the Fish and Wildlife\nService, and NOAA as part of the permit review process, the Corps retains the ultimately\nauthority to decide whether to issue or deny the Section 404 permit. See U.S. Army Corps\n239\n\n\x0cof Engineers, RGL 92-01, Federal Agencies Roles and Responsibilities (May 12, 1992).\nMany of those agencies, as well as states and other federal agencies, consult or comment\nduring the permit process because the Corps\xe2\x80\x99 decision to issue or deny a Section 404\npermit triggers provisions of other statutes or other provisions of the Clean Water Act.\nFor instance, Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C.\n\xc2\xa7 1536(a)(2), requires federal agencies to insure that actions that they authorize, such as\nthrough the issuance of a Section 404 permit, are not likely to \xe2\x80\x9cjeopardize ... endangered ...\nor threatened species\xe2\x80\x9d or destroy or adversely modify their critical habitat. The ESA\nrequires federal agencies to follow specific procedures to consult with the Fish and Wildlife\nService or the National Marine Fisheries Service within NOAA (for marine species) to\nensure that the agencies\xe2\x80\x99 actions don\xe2\x80\x99t violate Section 7. Id. \xc2\xa7 1536(a); 50 C.F.R. Part 402,\nSubpart B (Department of Interior\xe2\x80\x99s regulations). Accordingly, when the Corps receives a\nsection 404 permit application, it reviews the application and, if the proposed activity may\naffect endangered or threatened species, it begins the consultation process required by the\nESA. See 33 C.F.R. \xc2\xa7 325.2(b)(5). As part of the formal consultation process, the Fish and\nWildlife Service or the National Marine Fisheries Service will prepare an environmental\nstudy called a biological opinion that evaluates whether the proposed activity will jeopardize\nthe continued existence of an endangered or threatened species. See 50 C.F.R. \xc2\xa7 402.14.\nIf the Corps ultimately concludes that the activity proposed in a permit will jeopardize and\nendangered or threatened species or destroy or adversely modify its critical habitat, the\nagency must deny the permit.\nThe Coastal Zone Management Act (CZMA), 16 U.S.C. \xc2\xa7\xc2\xa7 1451 et seq., also limits the\nCorps authority to issue Section 404 permits. If a state has an approved coastal zone\nmanagement program under the CZMA, the Corps cannot issue a permit for an activity that\naffects the coastal zone unless the state certifies that the proposed activity complies with\nthe state\xe2\x80\x99s program. Id. \xc2\xa7 1456(c)(3). When the Corps receives a permit application for such\nan activity, the applicant must include a certification that the activity complies with the\nstate\xe2\x80\x99s coastal zone management program. See 33 C.F.R. \xc2\xa7 325.2(b)(2). The Corps\nforwards that certification to the state for concurrence. Id. If the state objects, the Corps\ncannot issue the permit. Id. On the other hand, if the state concurs or fails to object within\nsix months, the Corps can issue the permit. Id.\nThe NEPA and Clean Water Act Section 401 certification requirements discussed in the\nsection above regarding general permits also apply to the Corps\xe2\x80\x99 evaluation of individual\npermits. Thus, when the Corps receives a Section 404 permit application, it will prepare\neither an environmental assessment or environmental impact statement, depending on\nthe magnitude of the impacts of the activities authorized by the permit, as part of the\npermitting process. See 33 C.F.R. Part 325, App. B. NEPA requires public involvement in\nthe preparation of those documents, so the Corps provides notice and appropriate\nopportunities to comment on the EA or EIS as part of the Section 404 permit review\n240\n\n\x0cprocess. Id. NEPA is a procedural statute and does not require agencies to take actions\nthat have the least harmful impacts on the environment, so, as long as the Corps prepares\nthe environmental assessment or environmental impact statement in accordance with the\nprocedures and requirements of NEPA, the agency can issue or deny the Section 404\npermit without further restrictions from NEPA.\nIn order to comply with the Clean Water Act Section 401 certification requirements, the\nCorps asks the applicant to submit the certification (that the discharge won\xe2\x80\x99t violate state\nwater quality standards) from the State where the discharge will occur as part of the\napplication. See 33 C.F.R. \xc2\xa7 325.2(b)(1). If the applicant does not provide the certification,\nthe Corps seeks the certification from the State. Id. If, after the Corps issues the initial\npublic notice for a permit application, EPA determines that additional states need to provide\nSection 401 certification, EPA will notify those states. Id. As noted above, in response to a\nrequest for certification, states can agree to the certification or they can object to the\ncertification and seek to have conditions imposed on the discharge. The Corps cannot\nissue a Section 404 permit until states issue the 401 certification or waive their right to do\nso, by failing to act on a request for certification within 60 days. Id.\n3.\n\nHearings and Decision-making\n\nUnless the other federal laws outlined above require a hearing because of the nature of a\nparticular permit application, the Corps\xe2\x80\x99 regulations give the district engineers discretion to\ndecide whether it is necessary to hold a public hearing on a Section 404 permit application.\nId. \xc2\xa7 325.2(a)(5). Few hearings are held, even though the Corps\xe2\x80\x99 regulations provide that\nthe agency will hold a public hearing whenever any person requests a hearing during the\ncomment period, unless the agency determines \xe2\x80\x9cthat the issues raised are insubstantial or\nthere is otherwise no valid interest to be served by a hearing.\xe2\x80\x9d Id. \xc2\xa7 327.4(b). When the\nCorps holds a hearing on a permit application, it is not a formal trial-type hearing. The\ndistrict engineer is usually the presiding officer at the hearing and any person may present\noral or written testimony at the hearing and call witnesses to present statements, but there\nis no cross-examination of witnesses. See 33 C.F.R. Part 327.\nWhen the Corps has completed its review of the permit application under the Clean Water\nAct standards discussed in the next section and has completed the consultation and review\nrequired by the laws outlined above, the agency will issue or deny the permit, or issue it\nwith conditions. If the Corps issues a permit before other agencies have completed their\nreview of the activities authorized by the permit, the Corps will normally condition the permit\non approval by the other agencies. See 33 C.F.R. \xc2\xa7 325.2(d)(4). When the Corps makes a\nfinal decision on the permit application, it supports the decision with a written statement of\nfindings or record of decision (if an EIS was prepared), which explains the basis for the\nagency\xe2\x80\x99s decision. Id. \xc2\xa7 325.2(b)(6).\nIf the Corps denies a permit application or includes conditions in the permit that lead the\n241\n\n\x0capplicant to decline the permit, the applicant, but no third party, can appeal the Corps\xe2\x80\x99\npermit decision administratively. See 33 C.F.R. \xc2\xa7 331.6. The administrative process is\ndescribed in Chapter 10 of this book. Permit applicants must appeal the Corps\xe2\x80\x99 decision\nthrough those administrative processes before they can appeal the decision in court. Id.\n\xc2\xa7 331.12. Since the administrative appeal process is only available to permit applicants,\nanyone else who wants to challenge the Corps\xe2\x80\x99 decision to issue, condition, or deny a\nSection 404 permit must challenge it in court. Chapter 10 of this book explores the judicial\nreview and citizen suit provisions of the Clean Water Act in detail.\nQuestions and Comments\n1.\n\nTiming: The Corps\xe2\x80\x99 permit regulations require the Corps to make a determination\nregarding whether a permit application is complete within 15 days after receiving the\napplication, and require the Corps to make a decision on a permit application within\n60 days after the agency determines that the application is complete, unless specific\nconditions identified in the regulation are met. See 33 C.F.R. \xc2\xa7 325.2. Not\nsurprisingly, the process normally takes longer than that. Although the authors of a\n2002 study claimed that it took, on average, about 788 days to process an individual\nSection 404 permit, see Sunding & Zilberman, supra, at 74, the Corps indicates that\nit took, on average, about 221 days to process individual permits in 2010. See U.S.\nArmy Corps of Engineers, Reissuance of Nationwide Permits, 77 Fed. Reg. 10184,\n10190 (Feb. 21, 2012).\n\n2.\n\nThe rest of the story re: permit denials: Although the Corps denies a very small\npercentage of individual Section 404 permit applications each year, many permit\napplications are withdrawn before the Corps makes a decision on the permit, and\nmany permits include conditions that the applicant did not originally propose or\nmight prefer were not included. In 2007 and 2008, for instance, 14% of permit\napplications were withdrawn. See Royal C. Gardner, Lawyers, Swamps, and Money\n102 (Island Press, 2011).\n\n3.\n\nNEPA Issues: As will be discussed in the next section, when a landowner receives\na permit to discharge dredged or fill material into wetlands (or other waters of the\nUnited States), the Corps frequently requires the permittee to create, restore,\nenhance, or preserve other wetlands to mitigate the environmental harm caused by\nthe discharge. When the Corps is determining whether the effects of a discharge\nauthorized by a permit are significant enough to require the preparation of an\nenvironmental impact statement, the Corps often focuses on the net effects of the\ndischarge when considering any mitigation that will take place as part of the permit,\nrather than simply focusing on the environmental effects of the discharge itself. By\ndoing this, the adverse impacts are often reduced to a level where they are not\nsignificant, so the Corps can issue a FONSI. Although environmental groups have\ncriticized this approach, the Council on Environmental Quality has issued guidance\n242\n\n\x0cthat authorizes \xe2\x80\x9cmitigated FONSIs\xe2\x80\x9d if the mitigation is enforceable and monitored.\nSee Nancy Sutley, Chair, Council on Environmental Quality, Memorandum for\nHeads of Federal Departments and Agencies, Appropriate Use of Mitigation and\nClarifying the Appropriate Use of Mitigated Findings of No Significant Impact (Jan.\n14, 2011).\nAnother issue that arises with regard to NEPA is the scope of the project to be\nreviewed under NEPA. If a project will involve a discharge of dredged or fill material\ninto waters of the United States but also includes development of uplands, the\nCorps normally only evaluates the portions of the project that take place in waters of\nthe United States as part of the environmental review under NEPA. See 33 C.F.R.\nPart 325, App. B, \xc2\xa7 7. The Corps\xe2\x80\x99 approach has been upheld by the Ninth Circuit.\nSee Sylvester v. U.S. Army Corps of Engineers, 871 F.2d 817 (9th Cir. 1989),\nrevised at 884 F.2d 394 (9th Cir. 1989).\n4.\n\nCompliance with other laws: In addition to the laws outlined above, the Corps\nmust also comply with the National Historic Preservation Act, 16 U.S.C. \xc2\xa7\xc2\xa7 470 et\nseq., when issuing a Section 404 permit. The Corps\xe2\x80\x99 regulations establish a process\nfor review and consultation to comply with the statute as part of the 404 permit\nprocess. See .33 C.F.R. Part 325, App. C,\n\n5.\n\nSurface coal mining: In light of all the controversy surrounding the Corps\xe2\x80\x99 issuance\nof permits for valley fills from mountaintop removal mining, the Corps, EPA and the\nFish and Wildlife Service entered into a Memorandum of Understanding in 2005 to\ncoordinate review of such permits. See Memorandum of Understanding for the\nPurpose of Providing Concurrent and Coordinated Review and Processing of\nSurface Coal Mining Applications Proposing Placement of Dredged and/or Fill\nMaterial in Waters of the United States (Feb. 10, 2005).\n\n6.\n\nThe hearing requirement: What is the standard of review that courts will apply\nwhen the Corps determines that it is not necessary to hold a public hearing for a\nSection 404 permit? See Friends of the Payette v. Horseshoe Bend Hydroelectric\nCo., 988 F.2d 989 (9th Cir. 1993).\nWhen the Corps holds a hearing for Section 404 permits, it holds an informal\nhearing. Does due process require a more formal hearing than the hearing provided\nby the Corps as part of the Section 404 permit process? Does due process require\nthat the Corps provide that hearing for every permit decision? See AJA Associates\nv. U.S. Army Corps of Engineers, 817 F.2d 1070 (3d Cir. 1987); Buttrey v. United\nStates, 690 F.2d 1170 (5th Cir. 1982).\n\n7.\n\nAfter the fact permits: The Corps\xe2\x80\x99 regulations authorize the agency, in limited\ncircumstances, to issue \xe2\x80\x9cafter the fact\xe2\x80\x9d permits for activities that have already taken\n243\n\n\x0cplace. See 33 C.F.R. \xc2\xa7 326.3(e). The agency uses this as an enforcement tool, and\nthe permittee must follow the normal permit application procedures. Id.\nResearch Problems\nPending or final permits: The Corps provides, on the website of the Corps\xe2\x80\x99\nheadquarters, a searchable list of individual Section 404 permits issued by the\nagency and pending individual permit applications. The list does not, however,\ninclude links to the actual permits, which are available from the district offices. In\naddition, the Regulatory sections of the Corps district offices usually post public\nnotices of pending permit applications on their websites. Although the notices do not\nusually include the permit application, they provide more information than is available\nfor pending applications on the Corps\xe2\x80\x99 headquarters website. Relying on those\nsources, answer the following questions:\n1. How many individual Section 404 permits and letters of permission were issued by\nthe Sacramento District of the Corps in February, 2014? What activity was authorized\nby the permit issued to Scott Murphy and the City of Montrose?\n2. What is the website address where you will find public notices of pending Section\n404 permit applications in the Seattle, Washington area? If you can find a pending\npermit application, please identify the applicant and indicate when the comment\nperiod for that notice expires.\n\nB.\n\nThe Standards for Permit Review\n\nThe primary standards that the Corps of Engineers uses to evaluate whether to issue or\ndeny a Section 404 permit, or the conditions to include in a Section 404 permit are the\nSection 404(b)(1) guidelines. See 40 C.F.R. Part 230. However, when evaluating Section\n404 permit applications, the Corps also conducts a public interest review.\n1.\n\nPublic Interest Review\n\nAlthough it is not explicitly required by the Clean Water Act, the Corps conducts a \xe2\x80\x9cpublic\ninterest review\xe2\x80\x9d of each Section 404 permit application (and Rivers and Harbors Act section\n10 permit application). Pursuant to its regulations, the Corps evaluates \xe2\x80\x9cthe probable\nimpacts, including cumulative impacts of the proposed activity and its intended use on the\npublic interest.\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 320.4(a). The factors that the Corps considers as part of\nits public interest review include:\n244\n\n\x0cConservation\n\nEconomics\n\nAesthetics\n\nGeneral Environmental\nConcerns\n\nWetlands\n\nHistoric Properties\n\nFish and Wildlife Values\n\nFlood Hazards\n\nFloodplain Values\n\nLand Use\n\nNavigation\n\nShore Erosion\n\nRecreation\n\nWater Supply and\nConservation\n\nWater Quality\n\nMineral Needs\n\nConsiderations of Property\nOwnership\n\nThe Needs and Welfare of\nthe People\n\nId.\nBecause the review includes such a broad range of factors, it has been criticized as\n\xe2\x80\x9cvirtually standardless\xe2\x80\x9d. See Royal C. Gardner, Lawyers, Swamps, and Money 75 (Island\nPress, 2011).\nFor purposes of the public interest review, the regulations create a presumption in favor of\ngranting the permit, providing that \xe2\x80\x9ca permit will be granted unless the [Corps] determines\nthat it would be contrary to the public interest.\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 320.4(a). However, the\nregulations also provide that the Corps should not issue permits to alter \xe2\x80\x9cimportant\xe2\x80\x9d\nwetlands unless the Corps determines that the benefits of alteration outweigh the damage\nto the wetlands. Id. While the Corps evaluates Section 404 permit applications under the\npublic interest review, as a practical matter, the agency never denies a permit based on the\npublic interest review alone. See Royal C. Gardner, Lawyers, Swamps, and Money 75\n(Island Press, 2011). The primary standards for review of Section 404 permit applications\nare the 404(b)(1) guidelines.\n2.\n\nSection 404(b)(1) Guidelines\n\nResource\nCorps Video on the 404(b)(1) Guidelines\n\nThe Clean Water Act authorizes the Corps of\nEngineers to issue permits for discharge of\ndredged or fill material \xe2\x80\x9cthrough the\napplication of guidelines developed by the\nAdministrator, in conjunction with the Secretary ...\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1344(b)(1). Although\nthey are called the 404(b)(1) guidelines, the \xe2\x80\x9cguidelines\xe2\x80\x9d are binding legislative rules,\nwhich were issued through the notice and comment rulemaking process, see 45 Fed. Reg.\n85336 (Dec. 24, 1980), and are codified at 40 C.F.R. Part 230.\n245\n\n\x0cThe guidelines place four major restrictions on discharges of dredged or fill material.\nFirst, they prohibit discharges if there is \xe2\x80\x9ca practicable alternative to the proposed\ndischarge which would have less adverse impact on the aquatic ecosystem.\xe2\x80\x9d See 40 C.F.R.\n\xc2\xa7 230.10(a).\nSecond, they prohibit discharges that violate or contribute to violation of several other\nlisted provisions of the Clean Water Act, Endangered Species Act, and the National Marine\nSanctuaries Act. Id. \xc2\xa7 230.10(b).\nThird, they prohibit discharges that will \xe2\x80\x9ccause or contribute to significant degradation of\nthe waters of the United States.\xe2\x80\x9d Id. \xc2\xa7 230.10(c).\nFourth, they prohibit discharges unless \xe2\x80\x9cappropriate and practicable steps have been\ntaken which will minimize potential adverse impacts ... on the aquatic ecosystem.\xe2\x80\x9d Id.\n\xc2\xa7 230.10(d).\nIf a discharge violates any one of those requirements, the Corps will deny the permit for the\ndischarge or condition the permit so that the discharge will not violate the requirements.\nThe fourth restriction identified above is the basis for the mitigation requirements that are\nincluded in Section 404 permits and will be explored at length in Chapter 7 of this book.\nRegarding the third restriction, the guidelines provide further elaboration on the meaning of\n\xe2\x80\x9csignificant degradation\xe2\x80\x9d, see 33 C.F.R.. \xc2\xa7 230.11, but courts have rarely overturned\nSection 404 permits on the grounds that the permit would cause or contribute to \xe2\x80\x9csignificant\ndegradation.\xe2\x80\x9d See Margaret Strand, Wetlands Deskbook 90 (Environmental Law institute,\n3d ed., 2009) The second restriction identified above is rather straightforward and is\ndesigned to ensure that the activities authorized by the Corps do not violate specific\nenvironmental standards that are frequently implicated by the discharge of dredged or fill\nmaterial. Consequently, the remainder of this chapter will focus on the practicable\nalternatives restriction in the 404(b)(1) guidelines.\na. Practicable alternatives\n\nResources\nCorps Video on Alternatives Analysis\nStatement of Findings, including alternatives\nanalysis, for Port of Anchorage 404 permit\n\nAs noted above, the Section 404(b)(1)\nguidelines prohibit discharges of dredged\nor fill material if there is \xe2\x80\x9ca practicable\nalternative to the proposed discharge\nwhich would have less adverse impact on the aquatic ecosystem.\xe2\x80\x9d See 40 C.F.R.\n\xc2\xa7 230.10(a). An alternative is a \xe2\x80\x9cpracticable\xe2\x80\x9d alternative if \xe2\x80\x9cit is available and capable of\nbeing done after taking into consideration cost, existing technology and logistics in light of\nthe overall project purpose.\xe2\x80\x9d Id. \xc2\xa7 230.10(a)(2). Thus, when the Corps evaluates a Section\n246\n\n\x0c404 permit application, it focuses, in part, on whether the permit applicant could proceed\nwith the proposed project on other land or in a different manner on the same land in a way\nthat would have a less adverse impact on the aquatic ecosystem. If there is a practicable\nalternative with less adverse impacts, the Corps must deny the permit. For instance, taking\na very simplified example, if a developer owns two parcels of land adjacent to a major\nhighway, only one of which has wetlands on it, and the developer seeks a Section 404\npermit to build a shopping mall on the parcel of land with the wetlands, but could build the\nmall on the other parcel (considering cost and the project purpose), the Corps should deny\nthe permit to the developer since construction on the other parcel is a practicable\nalternative that would have a less adverse impact on the aquatic ecosystem.\nThe guidelines also establish two presumptions regarding practicable alternatives when\nthe activity to be permitted involves a discharge into a \xe2\x80\x9cspecial aquatic site\xe2\x80\x9d (which, per the\nguidelines, includes wetlands, see 40 C.F.R. \xc2\xa7 230.41.\nFirst, if an activity to be permitted is not waterdependent (does not require access or proximity to or\nsiting within the special aquatic site to fulfill its basic\npurpose), the guidelines presume that practicable\nalternatives exist that do not involve special\naquatic sites, \xe2\x80\x9cunless clearly demonstrated\notherwise.\xe2\x80\x9d See 40 C.F.R. \xc2\xa7 230.10(a)(3). Thus, while\na dock would be water-dependent, a golf course would\ngenerally not be water-dependent. Accordingly, in the\npermitting process, the golf course developer would\nhave the burden of demonstrating that there were no\npracticable alternatives to constructing the golf course\nin the location and manner proposed in the permit\napplication.\nSecond, for activities that involve discharges into Photo 32 By Bill Fitzpatrick (Own work)\nspecial aquatic sites, the guidelines presume that any http://commons.wikimedia.org/wiki/File%3\npracticable alternatives to the proposed discharge AMunicipal_Golf_Course.jpg [CC-BY-SA3.0]\nthat do not involve special aquatic sites will have\nless adverse impact on the aquatic environment, \xe2\x80\x9cunless clearly demonstrated\notherwise.\xe2\x80\x9d Id. Accordingly, if there was another location available where the golf course\ndeveloper in the last example could build the golf course without filling wetlands and the\nlocation was a \xe2\x80\x9cpracticable\xe2\x80\x9d alternative, the developer would have to rebut the presumption\nthat the alternative would have a less adverse impact on the aquatic environment before\nthe Corps could issue a Section 404 permit.\n\n247\n\n\x0cProject Purpose\nOne issue that has been the source of controversy over the years has been the\nidentification of the purpose of a project for which a Section 404 permit is being sought. If\nthe purpose is defined sufficiently narrowly, the range of alternatives that will achieve that\npurpose and be considered \xe2\x80\x9cpracticable\xe2\x80\x9d will be narrowed as well. Similarly, the manner in\nwhich the project purpose is framed can greatly affect whether the project is considered\n\xe2\x80\x9cwater dependent.\xe2\x80\x9d As a result, for many years, disputes arose concerning whether the\nproject purpose was ultimately determined by the Corps or the applicant. The issue is\naddressed (1) in the following case and (2) in the following memorandum issued by the\nCorps in response to a request from EPA and the Department of Commerce to elevate a\npermit dispute to the Corps\xe2\x80\x99 headquarters for resolution. (Note: When EPA, FWS or NOAA\ncannot resolve disputes with the Corps regarding Section 404 permit applications at the\nregional level, the agencies have adopted a process, pursuant to Section 404(q) of the\nClean Water Act, to elevate those disputes to higher levels within the agencies for\nresolution. The elevation process is described in detail in Chapter 8 of this book).\nLouisiana Wildlife Federation, Inc. v.\nYork\n\nResources for the Case\nUnedited opinion (From Justia)\nGoogle Map of all of the cases in the coursebook\n\n761 F.2d 1044 (5th Cir. 1985)\nPER CURIAM:\n\nSix environmental organizations object to the issuance by the U.S. Army Corps of\nEngineers of six individual permits allowing private landowners to clear and convert to\nagriculture approximately 5200 acres of bottomland hardwood wetlands. * * * As to the six\nindividual permits, we agree with the district court that the Corps properly followed both the\nNational Environmental Policy Act (NEPA), and the Environmental Protection Agency\'s\nregulatory guidelines in making its determination. * * *\nThe district court opinion efficiently distilled a voluminous record and described in detail\n* * * the physical characteristics of the six tracts affected by the permit applications.\n* * * We, therefore, do not attempt to repeat the factual background of this case.\nThe six permits granted by the Corps authorize the agricultural conversion of 5200 acres of\nwetlands. For environmental protection purposes, such wetlands are denominated "special\naquatic sites." * * * Both the Environmental Protection Agency\'s Guidelines and the Corps\nof Engineers\' regulations treat all special aquatic sites as worthy of extra protection, and\nstate as "[t]he guiding principle ... that degradation or destruction of special sites may\nrepresent an irreversible loss of valuable aquatic resources." * * *\n\n248\n\n\x0cSuch heightened solicitude for wetlands is manifest in the regulations stating the\nconsiderations that must be taken into account when evaluating a proposed alteration to\nwetlands acreage. When a discharge of dredged or fill material is proposed, the Corps\'\nGuidelines prohibit issuance of a permit if there is a "practicable alternative that would have\nless adverse impact on the aquatic ecosystem...." * * * A "practicable alternative," in turn, is\ndefined as one that is, "available and capable of being done after taking into consideration\ncost, existing technology, and logistics in light of overall project purposes." * * * With\nrespect to wetlands, however, the Guidelines specify:\n[w]here the activity associated with a discharge which is proposed for a special\naquatic site ... does not require access or proximity to or siting within the special\naquatic site in question to fulfill the basic purpose (i.e. is not \'water dependent\'),\npracticable alternatives that do not involve special aquatic sites are presumed to be\navailable, unless clearly demonstrated otherwise. * * *\n"Thus, the guidelines couple a general presumption against all discharges into aquatic\necosystems with a specific presumption that practicable alternatives to the fill of wetlands\nexist." * * *\nIn each of the six permit-application proceedings, the Corps characterized the applicant\'s\nbasic purpose for the project as being, "to increase soybean production or to increase net\nreturn on assets owned by the company." * * * It is undisputed that soybean production is a\nnon-water dependent activity. As shown above, this fact "necessitate[s] a more persuasive\nshowing than otherwise concerning the lack of alternatives." * * *\nThe environmental protection organizations argue on appeal that the applicants failed to\nmake the required showing, and that the Corps erroneously granted them permits by\ninterpreting "practicable alternatives" to mean "profit-maximizing alternatives." In addition,\nthey contend that the Corps erred in viewing the alternatives with the applicants\' objectives\nin mind instead of with an eye towards environmental maintenance. Both arguments must\nbe rejected. * * *\n[The Court held that the Corps, in granting the permits, often approved an alternative that\nwas not \xe2\x80\x9cprofit maximizing\xe2\x80\x9d, so the court rejected the environmental organizations initial\nargument.]\nThe environmental protection organizations\' second contention, that the alternatives may\nnot be viewed with the applicant\'s objectives in mind, is not substantiated by either case\nlaw or the applicable regulations. As the district court recognized, the Preamble to the\nGuidelines states, "... [w]e consider implicit that, to be practicable, an alternative must be\ncapable of achieving the best purpose of the proposed activity." * * * In turn, the text of the\nGuidelines provides that an alternative is practicable if it is available and capable of being\ndone after taking into account costs, existing technology and logistics in light of the overall\n249\n\n\x0cproject purposes. * * * Under these Guidelines, therefore, not only is it permissible for the\nCorps to consider the applicant\'s objective; the Corps has a duty to take into account the\nobjectives of the applicant\'s project.* * * Indeed, it would be bizarre if the Corps were to\nignore the purpose for which the applicant seeks a permit and to substitute a purpose it\ndeems more suitable.\nThe case law, although sparse, is in accord with our conclusion. In Hough v. Marsh, supra,\nresidents of Edgartown, Massachusetts challenged a Corps permit authorizing the filling of\na coastal tract to construct two private homes and a tennis court. The District Engineer had\nfound that the project was not "water dependent," and undertook the requisite examination\nto discover the existence of "practicable alternatives." The Engineer defined the basic\npurpose of the project as "providing two homes and a tennis court." * * * Although the\ndistrict court remanded for the landowners to demonstrate more clearly that no practicable\nalternatives to the proposed fill existed, the court did not question the Engineer\'s\nformulation of the project\'s objective, and did not suggest that the alternatives were not\nconsidered from the proper perspective. * * *\nThe district court\'s findings that the Corps properly analyzed all six permit applications and\ncorrectly decided to grant permission to clear the tracts for agricultural use is amply\nsupported by the record. Nothing in it convinces us that the Corps\' actions were arbitrary,\ncapricious, or otherwise not in accordance with law, the sole standards by which we review\nsuch actions.\n\nResources\n\nPermit Elevation, Plantation Landing\nResort\n\nUnedited version of the decision\nEPA fact sheet describing elevation process\nEPA website regarding 404(q) and elevation\n\nPatrick Kelly, Brigadier General Memorandum Thru Commander, U.S. Army Engineer\nDivision, Lower Mississippi Valley For Commander, U.S. Army Engineer District, New\nOrleans, Permit Elevation, Plantation Landing Resort, Inc. (Apr. 21, 1989)\n* * * By memorandum dated 3 February 1989, the Assistant Secretary of the Army (Civil\nWorks) advised me that he had granted the request of the Environmental Protection\nAgency (EPA) and the Department of Commerce (DOC) to elevate the permit case for\nPlantation Landing Resort, Inc., to HQUSACE for national policy level review concerning\nthe practicable alternatives and mitigation provisions of the 404(b)(1) Guidelines. My review\nof the case record * * * leads me to conclude that Corps policy * * * should be clarified in\ncertain respects. * * *\n\n250\n\n\x0cPlease re-evaluate the subject permit case in light of the guidance provided in the\nattachment, and take action accordingly. * * *\nAttachment\n* * * 5. One essential aspect of applying the \xe2\x80\x9cpracticable alternative\xe2\x80\x9d and "water\ndependency\xe2\x80\x9d provisions of the Guidelines to a particular 404 permit case is to decide what\nis the \xe2\x80\x9cbasic purpose\xe2\x80\x9d of the planned activity requiring the proposed discharge of dredged\nor fill material. The preamble to the Guidelines provides the following guidance on the\nmeaning of \xe2\x80\x9cbasic purpose\xe2\x80\x9d:\n\xe2\x80\x9cNon-water-dependent\xe2\x80\x9d discharges are those associated with activities which do not\nrequire access or proximity to or siting within the special aquatic site to fulfill their\nbasic purpose. An example is a fill to create a restaurant site, since restaurants do\nnot need be in wetlands to fulfill their basic purpose of feeding people. (45 Fed. Req.\n85339, Dec. 24, 1980; emphasis added)\n6. The 404(b) (1) analysis for the Plantation Landing Resort, Inc., application, even when\nread in conjunction with the Statement of Findings (SOF) and the Environmental\nAssessment (EA), does not deal with the issues of practicable alternatives and water\ndependency in a satisfactory manner. * * *\n7. One significant problem in the [New Orleans District\xe2\x80\x99s] approach to the 404(b)(1) review\nis found in the following, which is the only statement in the [New Orleans District\xe2\x80\x99s]\n404(b)(1) evaluation document presenting a project-specific reference to the Plantation\nLanding case with respect to the practicable alternative requirement of the Guidelines:\nSeveral less environmentally damaging alternatives were identified in the\nEnvironmental Assessment. The applicant stated and supplied information indicating\nthat these alternatives would not be practicable in light of his overall project\npurposes. Recent guidance from [the Lower Mississippi Valley Division] states that\nthe applicant is the authoritative source of information regarding practicability\ndeterminations, therefore no less environmentally damaging practicable alternatives\nare available. ([New Orleans District\xe2\x80\x99s] \xe2\x80\x9cEvaluation of Section 404(b)(1) Guidelines\xe2\x80\x9d,\n***)\nThis statement appears to allow the applicant to determine whether practicable alternatives\nexist to his project. Emphatically, that is not an acceptable approach for conducting the\nalternatives review under the 404(b)(1) Guidelines. The Corps is responsible for controlling\nevery aspect of the 404(b)(1) analysis. While the Corps should consider the views of the\napplicant regarding his project\xe2\x80\x99s purpose and the existence (or lack of) practicable\nalternatives, the Corps must determine and evaluate these mattes itself, with no control or\ndirection from the applicant, and without undue deference to the applicant\xe2\x80\x99s wishes. * * *\n251\n\n\x0c9. A reading of the entire record indicates that [the New Orleans District] accepted the\napplicant\'s assertion that the project as proposed must be accepted by the Corps as the\nbasis for the 404(b) (1) Guidelines practicability analysis. The applicant proposed a fullyintegrated, waterfront, contiguous water-oriented recreational complex, in the form the\napplicant proposed. Consequently, [the New Orleans District] apparently presumed that no\nalternative site could be considered if it could not support in one, contiguous waterfront\nlocation the same sort of fully integrated recreational complex that the applicant proposed\nto build. * * *\n11. The effect of NOD\'S deferring to and accepting the applicant\'s definition of the basic\npurpose of his project as a contiguous, fully-integrated, and entirely waterfront resort\ncomplex in the form the applicant had proposed was to ensure that no practicable\nalternative could exist. Nevertheless, the , administrative record nowhere provides any\nrationale for why the applicant\'s proposed complex had to be "contiguous" or "fully\nintegrated" or why all features of it had to be "waterfront." The only reason appearing on the\nrecord to indicate why NOD presumed that the project had to be contiguous, fully\nintegrated, and entirely waterfront is that the applicant stated that that was his proposal,\nthus by definition that was the official project purpose which the Corps must use. That is not\nan acceptable approach to interpret and implement the 404(b)(1) Guidelines. Only if the\nCorps, independently of the applicant, were to determine that the basic purposes of the\nproject cannot practicably be accomplished unless the project is built in a \xe2\x80\x9ccontiguous\xe2\x80\x9d,\n"fully integrated," and entirely "waterfront" manner would those conditions be relevant to the\n404(b) (1) Guidelines\' alternative review. The fact that those conditions may be part of the\nproposal as presented by the applicant is by no means determinative of that point. Once\nagain, the Corps, not the applicant, must define the basic purpose underlying the\napplicant\'s proposed activity. * * *\nQuestions and Comments\n1.\n\nStandard of Review of Corps\xe2\x80\x99 alternatives analysis: What standard of review did\nthe 5th Circuit apply to the Corps\xe2\x80\x99 identification of the purposes of the permit\napplicants\xe2\x80\x99 projects and the analysis regarding whether practicable alternatives\nexisted to achieve those purposes? Does \xe2\x80\x9cincreas[ing] net return on assets owned\nby the company\xe2\x80\x9d seem to be an appropriate purpose?\nFor another case discussing the standard of review that applies to the Corps\xe2\x80\x99\ndecision-making in many aspects of the 404 permit review, including the alternatives\nanalysis, see Fund for Animals v. Rice, 85 F.3d 535, 541-542 (11th Cir. 1996). That\ncourt\xe2\x80\x99s discussion of the \xe2\x80\x9carbitrary and capricious\xe2\x80\x9d standard is black letter\nadministrative law and may help explain the 5 th Circuit\xe2\x80\x99s deferential decision in\nLouisiana Wildlife Federation v. York.\n\n252\n\n\x0c2.\n\nWhile the 5th Circuit deferred to the Corps\xe2\x80\x99 identification of the project purpose in\nLouisiana Wildlife Federation v. York, how much deference does the Court suggest\nis due to the applicant\xe2\x80\x99s identification of the purpose? Who makes the final\ndetermination, according to the 5th Circuit?\n\n3.\n\nPlantation Landing Elevation: It is probably not surprising, in light of the language\nused by the 5th Circuit in Louisiana Wildlife Federation v. York, that the New Orleans\nDistrict of the Corps of Engineers deferred to the applicant\xe2\x80\x99s identification of the\nproject purpose in carrying out the alternatives analysis for the Plantation Landing\npermit application. It should be clear, though, that after that guidance, the Corps\nmakes an independent determination of the project\xe2\x80\x99s purpose, as well as whether\nalternatives are practicable and have less adverse effects on the aquatic\nenvironment. Subsequent to the guidance in the Plantation Landing permit elevation\ncase, the Corps issued similar guidance in several other permit elevation cases,\nincluding the Hartz Mountain Elevation and the Old Cutler Bay Elevation.\nThe Corps regulations that implement NEPA review for the Section 404 permit\nprocess explicitly provide \xe2\x80\x9c[W]hile generally focusing on the applicant\xe2\x80\x99s statement,\nthe Corps will, in all cases, exercise independent judgment in defining the purpose\nand need for the project from the applicant\xe2\x80\x99s and the public\xe2\x80\x99s perspective.\xe2\x80\x9d See 33\nC.F.R. Part 325, App. B(9)(c)(4). Although those regulations don\xe2\x80\x99t apply on their\nface to the alternatives analysis, the Corps has taken the same approach in\nconducting the alternatives analysis since the elevation decisions above.\n\n4.\n\nFlexibility in application: In 1993, recognizing that the impacts from discharges of\ndredged or fill material vary greatly, the Corps and EPA jointly issued guidance that\nprovides that the Guidelines \xe2\x80\x9cdo not contemplate that the same intensity of analysis\nwill be required for all types of projects but instead envision a correlation between\nthe scope of the evaluation and the potential extent of adverse impacts on the\naquatic environment.\xe2\x80\x9d See U.S. Army Corps of Engineers, RGL 93-02, Guidance on\nFlexibility of the 404(b)(1) Guidelines and Mitigation Banking 3 (Aug. 23, 1993).\nAccordingly, the guidance suggests that \xe2\x80\x9c[t]he amount of information needed to\nmake such a determination [that there is no practicable alternative to a proposed\ndischarge] and the level of scrutiny required by the Guidelines is commensurate with\nthe severity of the environmental impact * * * resource and the nature of the\nproposed activity) and the scope/cost of the project.\xe2\x80\x9d Id. at 2. How might this\nflexibility in application of the guidelines impact the deference accorded to the Corps\nwhen a court reviews the agency\xe2\x80\x99s alternatives analysis? See Greater Yellowstone\nCoalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004).\n\n5.\n\nWater-dependent: The characterization of a project\'s purpose will greatly influence\nwhether the project is deemed to be "water-dependent" for purposes of the\nalternatives analysis. For instance, in Shoreline Associates v. Marsh, when the\n253\n\n\x0cpermit applicant sought permission to discharge fill material to build a boat storage\narea and boat launch in conjunction with a townhouse development, the court\nupheld the Corps\xe2\x80\x99 determination that the basic purpose of the project was\nconstruction on the townhouse community, which was not water dependent, and\nthat the construction of the boat launch was only incidental to the basic purpose of\nthe project. See 555 F. Supp. 169 (D. Md. 1983), aff\xe2\x80\x99d 725 F.2d 677 (4th Cir. 1984).\nSeveral years later, when a permit applicant sought to reopen a river channel to\nprovide boat access to a residential community, the U.S. Court of Appeals for the\nEighth Circuit upheld the Corps\xe2\x80\x99 determination that the basic purpose of the project\nwas to provide boat access to the community, which was a water-dependent activity.\nSee National Wildlife Federation v. Whistler, 27 F.3d 1341 (8th Cir. 1994). The Court\ndistinguished the Shoreline case and cases like it on the grounds that the residential\ncommunity in the case under review was being constructed in uplands and did not\nrequire a permit, so the only activity triggering the permit requirement was the\nconstruction of the boat access. Id. at 1345. Although the Corps rejected the\napplicant\xe2\x80\x99s purpose in one case and accepted it in the other, in both cases, the\ncourts deferred to the agency because they concluded that the agency\xe2\x80\x99s\ndetermination was not arbitrary or capricious.\nAlternatives - Availability and Practicability\nSince the 404(b)(1) guidelines prohibit the Corps from issuing a permit when practicable\nalternatives to the proposed discharge are available that have less adverse impacts on the\naquatic environment, it is important to spend a little time examining how to determine when\nan alternative is \xe2\x80\x9cavailable\xe2\x80\x9d and when an available alternative is \xe2\x80\x9cpracticable.\xe2\x80\x9d Although\nthe applicant may suggest that certain alternatives are or are not available or practicable,\nthe Corps has the ultimate\nauthority to determine which\nalternatives are practicable\nalternatives, just as it has the\nultimate\nauthority\nto\ndetermine the basic purpose\nof the project. The following\ncase focuses on determining\nwhen\nalternatives\nare\n\xe2\x80\x9cavailable.\xe2\x80\x9d\n\n254\nPhoto 33 By S. Johnson\n\n\x0cBersani v. Robichaud\n850 F.2d 36 (2d Cir. 1988)\n\nResources for the case\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\n\nThis case arises out of Pyramid\'s attempt to build a shopping mall on certain wetlands in\nMassachusetts known as Sweedens Swamp. Acting under the Clean Water Act, * * * EPA\nvetoed the approval by the Corps of a permit to build the mall because EPA found that an\nalternative site had been available to Pyramid at the time it entered the market to search for\na site for the mall. The alternative site was purchased later by another developer and\narguably became unavailable by the time Pyramid applied for a permit to build the mall.\nOn appeal, the thrust of Pyramid\'s argument is a challenge to what it calls EPA\'s "market\nentry" theory, i.e., the interpretation by EPA of the relevant regulation, which led EPA to\nconsider the availability of alternative sites at the time Pyramid entered the market for a\nsite, instead of at the time it applied for a permit. Pyramid argues principally (1) that the\nmarket entry approach is contrary to the regulatory language and past practice; and (2) that\nsince the Corps, another agency which was jointly responsible with EPA for administering\nthe program in question, interpreted the pertinent regulation in a different way than EPA\nhad, and since the market entry issue does not involve environmental expertise, this Court\nshould not defer to EPA\'s interpretation of the regulation. * * *\nWe hold (1) that the market entry theory is consistent with both the regulatory language and\npast practice; (2) that EPA\'s interpretation, while not necessarily entitled to deference, is\nreasonable; and (3) that EPA\'s application of the regulation is supported by the\nadministrative record. We agree with the district court\'s conclusion that EPA\'s findings were\nnot arbitrary and capricious. We also hold that Pyramid\'s other arguments * * * lack merit.\nWe affirm.\n\n255\n\n\x0cI.\nA.\n\n***\nStatutory and Regulatory Framework\n***\n\nThe 404(b)(1) guidelines * * * are regulations containing the requirements for issuing a\npermit for discharge of dredged or fill materials. 40 C.F.R. Sec. 230.10(a)2 covers "nonwater dependent activities" (i.e., activities that could be performed on non-wetland sites,\nsuch as building a mall) and provides essentially that the Corps must determine whether an\nalternative site is available that would cause less harm to the wetlands. Specifically, it\nprovides that "no discharge of dredged or fill material shall be permitted if there is a\npracticable alternative" to the proposal that would have a "less adverse impact" on the\n"aquatic ecosystem". It also provides that a practicable alternative may include "an area not\npresently owned by the applicant which could reasonably be obtained, utilized, expanded\nor managed in order to fulfill the basic purpose of the proposed activity." * * * It further\nprovides that, "unless clearly demonstrated otherwise", practicable alternatives are (1)\n"presumed to be available" and (2) "presumed to have less adverse impact on the aquatic\necosystem". * * * Thus, an applicant such as Pyramid must rebut both of these\npresumptions in order to obtain a permit. Sections 230.10(c) and (d) require that the Corps\nnot permit any discharge that would contribute to significant degradation of the nation\'s\nwetlands and that any adverse impacts must be mitigated through practicable measures.\n***\nUnder Section 404(c) of the Act * * * , EPA has veto power over any decision of the Corps\nto issue a permit. It is this provision that is at the heart of the instant case. * * *\nFactual Background of the Swedens Swamp Project\nSweedens Swamp is a 49.5 acre wetland which is part of an 80 acre site near Interstate 95\nin South Attleboro, Massachusetts. Although some illegal dumping and motorbike\nintrusions have occurred, these activities have been found to have had little impact on the\nsite which remains a "high-quality red maple swamp" providing wildlife habitat and\nprotecting the area from flooding and pollution.\nThe effort to build a mall on Sweedens Swamp was initiated by Pyramid\'s predecessor, the\nEdward J. DeBartolo Corporation ("DeBartolo"). DeBartolo purchased the Swamp some\ntime before April 1982. At the time of this purchase an alternative site was available in\nNorth Attleboro (the "North Attleboro site"). Since Massachusetts requires state approval (in\naddition to federal approval) for projects that would fill wetlands, DeBartolo applied to the\nMassachusetts Department of Environmental Quality Engineering ("DEQE") for permission\nto build on Sweedens Swamp. DEQE denied the application in April 1982.\nPyramid took over the project in 1983 while the appeal of the DEQE denial was pending. In\n256\n\n\x0cApril 1983, Massachusetts adopted more rigorous standards for approval of permits. The\nnew standards added wildlife habitat as a value of wetlands to be protected and required\nthe absence of a "practicable alternative". In March 1985, DEQE granted approval under\nthe old, less stringent, regulations. The Massachusetts District Court reversed on the\nground that DEQE should have applied the new regulations, but the Massachusetts\nSupreme Judicial Court ultimately upheld DEQE\'s approval. * * *\nOne of the key issues in dispute in the instant case is just when did Pyramid begin\nsearching for a suitable site for its mall. EPA asserts that Pyramid began to search in the\nSpring of 1983. Pyramid asserts that it began to search several months later, in September\n1983. The difference is crucial because on July 1, 1983--a date between the starting dates\nclaimed by EPA and Pyramid--a competitor of Pyramid, the New England Development Co.\n("NED"), purchased options to buy the North Attleboro site. This site was located upland\nand could have served as a "practicable alternative" to Sweedens Swamp, if it had been\n"available" at the relevant time. Thus, if the relevant time to determine whether an\nalternative is "available" is the time the applicant is searching for a site (an issue that is\nhotly disputed), and if Pyramid began to search at a time before NED acquired options on\nthe North Attleboro site, there definitely would have been a "practicable alternative" to\nSweedens Swamp, and Pyramid\'s application should have been denied. On the other\nhand, if Pyramid did not begin its search until after NED acquired options on the North\nAttleboro site, then the site arguably was not "available" and the permit should have been\ngranted. Of course it also is possible that the North Attleboro site remained "available" after\nNED\'s acquisition of the options, since Pyramid arguably could have purchased the options\nfrom NED. Moreover, since the North Attleboro site indisputably was "available" when\nPyramid\'s predecessor, DeBartolo, purchased Sweedens Swamp, one might argue, as\nEPA does, that Pyramid should be held to stand in its predecessor\'s shoes. The district\ncourt apparently agreed with Pyramid on the issue of when Pyramid entered the market,\nstating that "Pyramid initially became interested in developing a shopping mall in the\nAttleboro area in September 1983." * * *\nIn December 1983, Pyramid purchased Sweedens Swamp from DeBartolo. In August\n1984, Pyramid applied under Sec. 404(a) to the New England regional division of the Corps\n(the "NE Corps") for a permit. It sought to fill or alter 32 of the 49.6 acres of the Swamp; to\nexcavate nine acres of uplands to create artificial wetlands; and to alter 13.3 acres of\nexisting wetlands to improve its environmental quality. Later Pyramid proposed to mitigate\nthe adverse impact on the wetlands by creating 36 acres of replacement wetlands in an offsite gravel pit.\nDuring the review of Pyramid\'s application by EPA, by the Fish and Wildlife Service\n("FWS") and by the Corps, Pyramid submitted information on "practicable alternatives",\nespecially the North Attleboro site. In rejecting that site as an alternative, Pyramid asserted\nthat building a mall there was not feasible, not that the site was unavailable. In the words of\nthe district court, Pyramid claimed that\n257\n\n\x0c"the site lacked sufficient traffic volume and sufficient access from local roads,\npotential department store tenants had expressed strong doubts about the feasibility\nof the site and previous attempts to develop the site had met with strong resistance\nfrom the surrounding community." * * *\nIn November 1984, EPA and FWS submitted official comments to the NE Corps\nrecommending denial of the application because Pyramid\'s proposal was inconsistent with\nthe 404(b)(1) guidelines. Pyramid had failed (1) to overcome the presumption of the\navailability of alternatives and (2) to mitigate adequately the adverse impact on wildlife.\nEPA threatened a Sec. 404(c) review. Pyramid then proposed to create additional artificial\nwetlands at a nearby upland site, a proposal it eventually abandoned.\nIn January 1985, the NE Corps hired a consultant to investigate the feasibility of Sweedens\nSwamp and the North Attleboro site. The consultant reported that either site was feasible\nbut that from a commercial standpoint only one mall could survive in the area. On February\n19, 1985, the NE Corps advised Pyramid that denial of its permit was imminent. On May 2,\n1985, the NE Corps sent its recommendation to deny the permit to the national\nheadquarters of the Corps. Although the NE Corps ordinarily makes the final decision on\nwhether to grant a permit, see 33 C.F.R. Sec. 325.8 (1982), in the instant case, because of\nwidespread publicity, General John F. Wall, the Director of Civil Works at the national\nheadquarters of the Corps, decided to review the NE Corps\' decision. Wall reached a\ndifferent conclusion. He decided to grant the permit after finding that Pyramid\'s offsite\nmitigation proposal would reduce the adverse impacts sufficiently to allow the "practicable\nalternative" test to be deemed satisfied. * * *\nAlthough he did not explicitly address the issue, Wall apparently assumed that the relevant\ntime to determine whether there was a practicable alternative was the time of the\napplication, not the time the applicant entered the market. In other words, Wall appears to\nhave assumed that the market entry theory was not the correct approach. ***\n[On May 13, 1986, EPA vetoed the permit and found] (2) that the North Attleboro site could\nhave been available to Pyramid at the time Pyramid investigated the area to search for a\nsite; * * * [and] (4) that the North Attleboro site was feasible and would have a less adverse\nimpact on the wetland environment * * * In the second of these findings, EPA used what\nPyramid calls the \xe2\x80\x98market entry\xe2\x80\x99 approach.\nOn July 1, 1986, Pyramid commenced the instant action in the district court to vacate EPA\xe2\x80\x99s\nfinal determination as arbitrary and capricious. * * * On October 6, 1987, the court granted\nEPA\xe2\x80\x99s motion for summary judgment. The court stated that, with regard to the market entry\ntheory, EPA\xe2\x80\x99s interpretation of its regulations was entitled to deference. This appeal\nfollowed.\nFor the reasons which follow, we affirm.\n258\n\n\x0cII\nOne of Pyramid\'s principal contentions is that the market entry approach is inconsistent\nwith both the language of the 404(b)(1) guidelines and the past practice of the Corps and\nEPA.\nA\nWith regard to the language of the regulations, Pyramid reasons that the 404(b)(1)\nguidelines are framed in the present tense, while the market entry approach focuses on the\npast by considering whether a practicable alternative was available at the time the applicant\nentered the market to search for a site. To support its argument that the 404(b)(1)\nguidelines are framed in the present tense, Pyramid quotes the following language:\n"An alternative is practicable if it is available.... If it is otherwise a practicable\nalternative, an area not presently owned by the applicant which could reasonably be\nobtained, utilized, expanded or managed in order to fulfill the basic purpose of the\nproposed activity may be considered." * * *\nWhile this argument has a certain surface appeal, we are persuaded that it is contrary to a\ncommon sense reading of the regulations; that it entails an overly literal and narrow\ninterpretation of the language; and that it creates requirements not intended by Congress.\nFirst, while it is true that the language is in the present tense, it does not follow that the\n"most natural" reading of the regulations would create a time-of-application rule. As EPA\npoints out, "the regulations do not indicate when it is to be determined whether an\nalternative \'is\' available," (emphasis in original), i.e., the "present" of the regulations might\nbe the time the application is submitted; the time it is reviewed; or any number of other\ntimes. Based upon a reading of the language in the context of the controlling statute and\nthe regulations as a whole, moreover, we conclude that when the agencies drafted the\nlanguage in question they simply were not thinking of the specific issues raised by the\ninstant case, in which an applicant had available alternatives at the time it was selecting its\nsite but these alternatives had evaporated by the time it applied for a permit. We therefore\nagree with the district court that the regulations are essentially silent on the issue of timing\nand that it would be appropriate to consider the objectives of the Act and the intent\nunderlying the promulgation of the regulations.\nSecond, as EPA has pointed out, the preamble to the 404(b)(1) guidelines states that the\npurpose of the "practicable alternatives" analysis is "to recognize the special value of\nwetlands and to avoid their unnecessary destruction, particularly where practicable\nalternatives were available in non-aquatic areas to achieve the basic purpose of the\nproposal." 45 Fed. Reg. 85,338 (1980) (emphasis added). In other words, the purpose is to\ncreate an incentive for developers to avoid choosing wetlands when they could choose an\n259\n\n\x0calternative upland site. Pyramid\'s reading of the regulations would thwart this purpose\nbecause it would remove the incentive for a developer to search for an alternative site at\nthe time such an incentive is needed, i.e., at the time it is making the decision to select a\nparticular site. If the practicable alternatives analysis were applied to the time of the\napplication for a permit, the developer would have little incentive to search for alternatives,\nespecially if it were confident that alternatives soon would disappear. Conversely, in a case\nin which alternatives were not available at the time the developer made its selection, but\nbecame available by the time of application, the developer\'s application would be denied\neven though it could not have explored the alternative site at the time of its decision.\nPyramid attacks this reasoning by arguing that few developers would take the risk that an\navailable alternative site would become unavailable and that EPA\'s reading improperly\nconsiders the motives and subjective state of mind of the applicant. These arguments are\nwide of the mark. Whether most real-life developers would take such a risk is irrelevant.\nThe point is that Pyramid\'s time-of-application theory is completely at odds with the\nexpressed intent of the regulations to provide an incentive to avoid choosing wetlands.\nSimilarly, EPA\'s interpretation does not require courts to investigate the subjective state of\nmind of a developer. EPA discusses state-of-mind issues only because it is discussing the\npurpose behind the regulations, which is concerned with incentives, and thus in fact is\nindirectly concerned with the developer\'s state of mind.\nIn short, we conclude that a common sense reading of the statute can lead only to the use\nof the market entry approach used by EPA.\nB\nWith regard to the past practice of the Corps and EPA, Pyramid asserts that neither has\never applied a market entry approach. It first cites two previous final determinations of EPA\n* * * On the basis of these determinations, Pyramid argues that, had EPA been using a\nmarket entry approach in these cases, it would have examined whether alternatives were\navailable at earlier times and that EPA had failed to make such an examination. * * *\nOur examination of these prior decisions has satisfied us, however, that the issue raised in\nthe instant case simply has not been addressed before. [The court then discussed why the\nissue was not relevant in the prior decisions cited by Pyramid.] * * *\nWe believe that the issue essentially is one of first impression. We view EPA\xe2\x80\x99s action in the\ninstant case as an application of the regulatory language to the specific needs of the case\nwhich arose here for the first time. We therefore hold that EPA has not acted contrary to\nprior practice under the regulations.\n\n260\n\n\x0cIII\n[In Part III of the opinion, the court addressed Pyramid\xe2\x80\x99s claim that EPA\xe2\x80\x99s interpretation of\nthe Guidelines was not entitled to deference because the Corps was charged with issuing\nSection 404 permits and the Corps had adopted a different interpretation of the Guidelines.\nThe Court did not ultimately determine whether EPA\xe2\x80\x99s interpretation, as opposed to the\nCorps\xe2\x80\x99, was entitled to a greater level of deference because (1) the court felt that it was\nunclear whether the Corps was evaluating alternatives based on a \xe2\x80\x9ctime of application\xe2\x80\x9d\ntheory or a \xe2\x80\x9cmarket entry\xe2\x80\x9d theory; and (2) regardless of whether EPA was entitled to a\ngreater level of deference than the Corps, EPA\xe2\x80\x99s decision was valid under the normal\nstandard of review that would apply in the case - the arbitrary and capricious standard.]\nQuestions and Comments\n1.\n\nEPA\xe2\x80\x99s veto: As mentioned above and as will be discussed in detail in Chapter 8,\ninfra, EPA can veto permits issued by the Corps if EPA determines that the\npermitted discharge will have unacceptable adverse effects. Since EPA vetoed the\npermit, the court is reviewing EPA\xe2\x80\x99s decision, rather than the Corps. In light of EPA\xe2\x80\x99s\nveto authority, it is probably more accurate to say that the government, rather than\nthe Corps, has the ultimate authority to determine whether alternatives are available\nand practicable.\n\n2.\n\nTiming of availability: In determining whether an alternative is \xe2\x80\x9cavailable\xe2\x80\x9d to a\npermit applicant, what is the appropriate time period to examine, according to the\ncourt? Should the Corps examine the alternatives that are available at the time of\nthe permit application? What are the disadvantages of that approach, according to\nthe court? Does the market entry approach achieve the goal of the statute and\nregulations if there are alternatives available at the time of application that were not\navailable when the applicant entered the market? As an alternative, should the\nCorps examine the alternatives that are available at the time the agency is deciding\nwhether to issue or deny the permit, regardless of what alternatives were available\nearlier? The dissent, in a portion of the opinion not reproduced above, suggests that\na \xe2\x80\x9ctime of decision\xe2\x80\x9d rule would be most consistent with the goals of the statute and\nregulations. Do you understand why? If you read the dissent\xe2\x80\x99s opinion, you\xe2\x80\x99ll notice\nthat the dissent has an \xe2\x80\x9cinteresting\xe2\x80\x9d view regarding the goals of the Clean Water Act\nand the 404(b)(1) Guidelines.\n\n3.\n\nApplying the market entry test: If the government will examine the alternatives\nthat are available to a permit applicant at the time the applicant enters the market for\nthe project in the permit application, when does the applicant \xe2\x80\x9center\xe2\x80\x9d the market?\nWhen the first internal memo is circulated? When they hire a consultant? Did the\ncourt articulate a precise test to determine when an applicant \xe2\x80\x9centers\xe2\x80\x9d the market?\n261\n\n\x0cDid it have to do so in this case?\n4.\n\nProperty not owned by the applicant: As was evident in this case, the 404(b)(1)\nGuidelines provide that \xe2\x80\x9cavailable\xe2\x80\x9d alternatives include areas \xe2\x80\x9cnot presently owned\nby the applicant which could reasonably be obtained, utilized, expanded or\nmanaged in order to fulfill the basic purpose of the proposed activity.\xe2\x80\x9d See 40 C.F.R.\n\xc2\xa7 230.10(a)(2).\n\n5.\n\nFairness: What role do considerations of fairness play in this case? On the one\nhand, the majority suggested that it might be appropriate to examine alternatives\nthat existed at the time that the permit applicant\xe2\x80\x99s predecessor entered the market,\nbecause the applicant received a permit from the State of Massachusetts for the\nproject under state standards that had been replaced because the applicant took\nover its predecessor\xe2\x80\x99s permit application, which was proceeding under the old\nstandards and was grand-fathered.\nOn the other hand, the permit applicant argued that the government\xe2\x80\x99s decision to\napply a \xe2\x80\x9cmarket entry\xe2\x80\x9d test to determine whether alternatives were \xe2\x80\x9cavailable\xe2\x80\x9d was a\nretroactive application of a new standard. Was it? Can agencies make decisions in\nadjudication that apply retroactively? What are the limits on the agency?\n\n6.\n\nChanging positions: The permit applicant argued that EPA\xe2\x80\x99s decision to apply a\n\xe2\x80\x9cmarket entry\xe2\x80\x9d approach should be invalidated because the \xe2\x80\x9cmarket entry\xe2\x80\x9d test\nrepresented a change in the agency\xe2\x80\x99s interpretation of the Guidelines and was\ninconsistent with the prior interpretation of the Guidelines. The court did not believe\nthat the agency was changing its past interpretation or practice. How would the\ncourt\xe2\x80\x99s analysis have differed if EPA\xe2\x80\x99s interpretation represented a change in its\nprior interpretation of the Guidelines? Can agencies change their interpretations of\nregulations over time? If so, are there any limits on those changes? Could EPA have\nadopted a \xe2\x80\x9cmarket entry\xe2\x80\x9d approach if it had previously adopted a regulation that\nindicated that alternatives would be evaluated based on alternatives that are\navailable at the time of the permit application?\n\n7.\n\nDueling agencies: The permit applicant argued that EPA\xe2\x80\x99s interpretation of the\n404(b)(1) Guidelines is not entitled to deference in this case because the Corps,\nrather than EPA, administers the Section 404 permit program on a daily basis. The\ncourt did not ultimately determine whether EPA\xe2\x80\x99s interpretation was entitled to\ngreater deference than the Corps\xe2\x80\x99 interpretation because the court concluded that\nEPA\xe2\x80\x99s interpretation was not arbitrary or capricious and was valid even without any\nadditional deference. However, if the court had to decide the question, would EPA\xe2\x80\x99s\ninterpretation be entitled to greater deference than the Corps if they interpreted the\nGuidelines differently? What is the analysis that should be used to resolve that\nissue?\n262\n\n\x0c8.\n\nLess adverse impact - Buy down: The Corps granted the permit in this case\nbecause the decisionmaker concluded that the practicable alternatives to the\nproposed discharge would not have less adverse impact on the aquatic environment\nwhen compared to the impacts of the proposed discharge, taking into consideration\nthe off-site mitigation for the proposed discharge. At the time, it was not unusual for\nthe Corps to allow permit applicants to satisfy the alternatives analysis by \xe2\x80\x9cbuying\ndown\xe2\x80\x9d (reducing) the effects of a proposed discharge to a level where they would be\nequal to or less than the effects of practicable alternatives. However, in 1990, EPA\nand the Corps entered into a Memorandum of Agreement that clarified that\ncompensatory mitigation should not be considered in determining the effects of a\nproposed discharge for purposes of the alternatives analysis required by the Section\n404(b)(1) Guidelines. See U.S. Army Corps of Engineers & U.S. Environmental\nProtection Agency, Memorandum of Agreement: The Determination of Mitigation\nUnder the Clean Water Act Section 404(b)(1) Guidelines (Feb. 6, 1990). The Corps\nand EPA still follow that approach today. See 33 C.F.R. \xc2\xa7 332.1(f)(2).\n\n9.\n\nConsidering cost in determining practicability: The preamble to the 404(b)(1)\nGuidelines provides that \xe2\x80\x9c[t]he mere fact that an alternative may cost somewhat\nmore does not mean it is not practicable.\xe2\x80\x9d See 45 Fed. Reg. 85336, 85339 (Dec. 24,\n1980). However, if the alternative is \xe2\x80\x9cunreasonably expensive\xe2\x80\x9d, it will not be\nconsidered to be \xe2\x80\x9cpracticable.\xe2\x80\x9d Id. at 85343. Although the analysis is very factsensitive, cases where courts have found that alternatives are not \xe2\x80\x9cpracticable\xe2\x80\x9d due\nto the cost include James City County v. U.S. Environmental Protection Agency, 955\nF.2d 254 (4th Cir. 1992) (cost of alternative would be 50% higher than cost of\nproposed activity); Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986)\n(alternative would have increased costs by $1 million per year).\n\n10.\n\nProfessor Oliver Houck outlines the history of the alternatives analysis and provides\nan early critique of the process in Hard Choices: The Analysis of Alternatives Under\nSection 404 of the Clean Water Act and Similar Environmental Laws, 60 U. Colo. L.\nRev. 774 (1989).\n\n263\n\n\x0cHypothetical\nSeveral years ago, Springfield FC, a minor league professional soccer team, moved out of\nthe city of Springfield because the club felt that the city did not adequately maintain the\nstadium in which they played. The owners of the club, who leased the stadium from the city,\ncomplained that the city did not adequately maintain the turf, the locker rooms, or the training\nfields. In addition, the owners of the club complained that there was not adequate parking at\nthe stadium and that the two lane access roads to the stadium were too small. It was\nsurprising that so many fans attended the games because the stadium was located within a\nmile of the city\'s retired solid waste landfill, and the smell that emanated from the landfill was\nrather unpleasant.\nIn order to attract another professional soccer team to Springfield, city officials formed the\nSpringfield Stadium Development Authority (SSDA) on October 31, 2011 to spearhead the\nconstruction of a new stadium in Springfield. The SSDA decided that the stadium should be\nlocated downtown, so that it could spur redevelopment of the city\'s central business district.\nIn January, 2012, the SSDA began to explore potential locations for the stadium. The first\nproperty that they considered was a 40 acre parcel of land in the central business district that\nwas an abandoned zipper factory. Construction on that site would not have impacted any\nwetlands, but the SSDA was concerned that the costs of demolishing the factory and\ncleaning up any pollution from the site would be exorbitant. An environmental consultant\nestimated that clean-up costs could exceed $30 million.\nA few weeks later, the SSDA visited a 30 acre plot of undeveloped land that was located a\nmile away from the zipper factory, but still in the central business district. At the time, Ned\nRooney, the owner of the site, was listing the property at $7 million. Construction on the site\nwould not have impacted any wetlands, and the SSDA strongly considered purchasing that\nproperty until they found the Sturridge Family Trust Property.\nThe Sturridge property is a 40 acre plot of land that is located just outside of the central\nbusiness district, near the Springfield River, and was advertised for sale at $6 million.\nAlthough it is located outside of the central business district, SSDA believed that\ndevelopment of the stadium on that site will still spur redevelopment in the central business\ndistrict. Unfortunately, the property contained 20 acres of wetlands, and it would be very\ndifficult to build the stadium on the property without impacting the wetlands.\nIn addition to those sites, the SSDA looked at a 50 acre parcel of undeveloped land that was\nlocated in the northern suburbs of Springfield. Construction of the stadium on that site would\nnot have impacted any wetlands, but the SSDA rejected the site because it was not located\nnear the central business district. Further, the Springfield city manager identified a 30 acre\nparcel of vacant land that was located near the central business district (the Portsmouth site),\nbut the SSDA rejected that site because it was not for sale at the time. Construction on that\nsite would have impacted 2 acres of isolated wetlands.\n\n264\n\n\x0cThe SSDA also considered upgrading the existing soccer stadium and expanding the parking\nand access roads to the stadium, which was located just outside the central business district.\nThose improvements would not have impacted any wetlands. Although the improvements\nwould have cost about $15 million, an economist for the SSDA forecast that the\nimprovements would increase the value of the stadium by $30 million and could attract a\nprofessional soccer team that would lease the stadium and pay the city enough money to\ncover the redevelopment costs within 15 years.\nHowever, the economist also advised the SSDA that construction of a new stadium on the\nSturridge property would likely provide income that was twice as much as the city could\nreceive if it upgraded the existing stadium.\nAfter exploring all of those sites, the SSDA decided to purchase the Sturridge property. At the\ntime that they bought the property, the Rooney property had already been sold to another\ndeveloper, who had begun construction of a mall on the property.\nSince construction of the stadium on the Sturridge property involved a discharge of dredged\nor fill material into wetlands that are adjacent to the Springfield River, the SSDA applied to\nthe Corps of Engineers for a Section 404 permit. The proposed development would destroy\n15 acres of wetlands that provide flood control for the downtown area of the city and\nimportant wildlife habitat. The SSDA identified the purpose of the project, in its permit\napplication as "to construct a soccer stadium for a professional soccer team in an area of\nSpringfield that will spur redevelopment of the city\'s central business district."\nWhich of the properties identified above are likely to be considered "available" alternatives in\nthe Corps\' review of the permit application? Are there any practicable alternatives to the\nSSDA\'s development proposal that would have less adverse impact on the aquatic\necosystem? Do any presumptions apply to the Corps\' review of the permit application? Is it\nlikely that the Corps will issue the permit to SSDA for the project as proposed by SSDA?\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 6, why not try a CALI lesson on individual Section 404\npermits at: http://cca.li/PX. It should only take about 30 minutes.\n\n265\n\n\x0cChapter 7\nMitigation\nWhen the Corps issues a Section 404 permit that authorizes the discharge of dredged or fill\nmaterial into wetlands, at least some wetlands are likely to be destroyed or degraded, even\nthough the permit applicant has taken measures to avoid and minimize the impacts. For\nthat reason, the Corps has, from the early days of the Section 404 permit program,\nincluded conditions in permits that require the permittee to offset those environmental\nharms by providing compensatory mitigation.\nI.\n\nTypes of Mitigation\n\nThere are basically four types of compensatory mitigation:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nRestoration\nEnhancement\nCreation\nPreservation\n\nRestoration of wetlands involves re-establishing or\nrehabilitating wetlands with the goal of returning\nnatural or historic functions to a former wetland or a\ndegraded wetland. See 33 C.F.R. \xc2\xa7 332.2. Wetlands\nare re-established or rehabilitated by manipulating the\nphysical, chemical or biological characteristics of a\nsite. Id. For instance, a wetland that has been drained\nmay be restored by removing underground drain tiles,\nplugging open ditches, or building small dikes. See\nMichigan Department of Natural Resources, Wetland\nRestoration Techniques. Restoration often provides\nthe most cost-effective improvement in wetland\nfunction. See U.S. Department of Agriculture,\nEngineering Field Handbook, Part 650, Chapter 13,\nWetland Restoration, Enhancement or Creation 13-2\n(Apr. 2008) [hereinafter \xe2\x80\x9cUSDA Engineering Field\n266\n\nPhoto 34 Wetlands Restoration - USDA\nPhoto on\nhttp://commons.wikimedia.org/wiki/File:\nWetlands_restoration_hughes_co_south_\ndakota.jpg\n\n\x0cHandbook\xe2\x80\x9d]. Sites that will be restored often have wetlands soils and some wetland plants\nand mainly require re-establishment of the former hydrology and topography.\nEnhancement of wetlands involves manipulating the physical, chemical or biological\ncharacteristics of an existing wetland to improve a particular function or functions. See 33\nC.F.R. \xc2\xa7 332.2. For instance, enhancement projects might involve diverting a small stream\ninto a wetland to change the water depth or planting different vegetation in the wetland in\norder to provide habitat for different varieties of fish, birds, or other wildlife. See USDA\nEngineering Field Handbook 13-2. By improving some functions of wetlands, though,\nenhancement projects might impair other functions. See 33 C.F.R. \xc2\xa7 332.2. For example,\nby improving the habitat for some varieties of fish and wildlife, a project may degrade the\nhabitat for others. Enhancement projects do not generally increase the acreage of existing\nwetlands. Id. While restoration and enhancement projects can both take place in degraded\nwetlands, restoration projects focus on returning the site to a prior condition, while\nenhancement focuses on changing the functions of the site, without regard to the prior\ncondition of the site. Wetlands enhancement projects generally require more management\nand are more expensive than wetlands restoration projects. See USDA Engineering Field\nHandbook 13-2.\nCreation (or establishment) of wetlands involves manipulating the physical, chemical or\nbiological characteristics of land to establish wetlands in uplands or on lands where\nwetlands did not previously exist. See 33 C.F.R. \xc2\xa7 332.2. Wetland creation is the most\ndifficult type of compensatory mitigation because it requires bringing water to a site where it\ndoes not naturally occur and establishing vegetation on soils that are not hydric soils. See\nNational Oceanographic and Atmospheric Administration, An Introduction and User\xe2\x80\x99s Guide\nto Wetland Restoration, Creation and Enhancement 11. Consequently, wetland creation is\nmore expensive and requires more management than other mitigation options. See USDA\nEngineering Field Handbook 13-2. Wetlands are often created for only one function, such\nas providing wildlife habitat, educational opportunities, or improving water quality of nonpoint source runoff. Id. If successful, though, wetland creation provides an increase in the\nfunctions and acreage of wetlands. See 33 C.F.R. \xc2\xa7 332.2\nPreservation of wetlands involves the permanent protection of ecologically important\nwetlands through the implementation of appropriate legal and physical mechanisms, such\nas conservation easements or transfer of title. See 40 C.F.R. \xc2\xa7 230.93(h). It does not\nprovide an increase in wetland functions or acreage. See 33 C.F.R. \xc2\xa7 332.2\nThe purpose of compensatory mitigation is to develop long term self-sustaining aquatic\nresources that offset adverse effects and are not dependent on human intervention after\nthe mitigation has been established. See U.S. Army Corps of Engineers, Sacramento\nDistrict, Mitigation.\nOf the four types of compensatory mitigation, restoration is generally the preferred option\n267\n\n\x0cbecause it has a greater likelihood of success and impacts potentially ecologically\nimportant uplands less than wetlands creation, and because it provides greater gains in\nwetlands functions than wetlands enhancement or preservation. See 33 C.F.R.\n\xc2\xa7 332.3(a)(2). Preservation is limited to preserving ecologically important wetlands and\nresources and normally is only accepted as part of a package of mitigation that also\nincludes restoration, enhancement or creation of wetlands resources. See 40 C.F.R.\n\xc2\xa7 230.93(h).\nThus, when the Corps issues a Section 404 permit that authorizes the destruction or\ndegradation of wetlands, the Corps will generally include conditions in the permit that\nrequire the permittee to offset those environmental harms by restoring, enhancing, creating\nand/or preserving wetlands.\nAs will be explained further below, the Corps may require the permittee to carry out and\nmanage the mitigation project itself, or it may allow the permittee to provide the required\nmitigation by purchasing mitigation credits from a mitigation bank that restores, enhances,\ncreates or preserves wetlands or by paying a fee, \xe2\x80\x9cin lieu\xe2\x80\x9d of doing the mitigation itself, to\nan organization that been approved by the Corps to restore, enhance, create or preserve\nwetlands. \xe2\x80\x9cPermitee-responsible mitigation\xe2\x80\x9d, \xe2\x80\x9cmitigation banking\xe2\x80\x9d and the \xe2\x80\x9cin lieu fee\nprograms\xe2\x80\x9d will be discussed in detail below.\nII.\n\nLegal Authority for Mitigation\n\nThe Clean Water Act does not explicitly state that Section 404 permits must include\ncompensatory mitigation requirements, but the statute provides that the 404(b)(1)\nGuidelines, which establish the criteria for permit evaluation, should be based on criteria\ncomparable to the ocean dumping criteria in Section 403(c) of the Clean Water Act, and\nthose criteria require avoidance and minimization of impacts. See 33 U.S.C. \xc2\xa7 1344(b)(1).\nUntil 2008, the 404(b)(1) Guidelines also did not explicitly require compensatory mitigation,\nalthough they required permittees to take \xe2\x80\x9cappropriate and practicable steps ... [to]\nminimize potential adverse impacts ... on the aquatic ecosystem.\xe2\x80\x9d See 40 C.F.R.\n\xc2\xa7 230.10(d). For several decades, therefore, the Corps and EPA used guidance\ndocuments, such as memoranda of agreement, action plans, and Regulatory Guidance\nLetters, to explain and administer the compensatory mitigation requirements in Section 404\npermits.\nIn 2003, however, Congress included a provision in Section 314 of the National Defense\nAuthorization Act for Fiscal Year 2004, P.L. 108-136, 117 Stat. 1392, that required the\nCorps, within two years, to promulgate regulations governing mitigation and mitigation\nbanking for the Section 404 permitting program. In response, in 2008, a few years late, the\nCorps and EPA published compensatory mitigation rules. See 73 Fed. Reg. 19594 (Apr.\n268\n\n\x0c10, 2008). The new rules superseded most of the guidance documents that the agencies\npreviously used to administer the compensatory mitigation requirements. See 33 C.F.R.\n\xc2\xa7 332.1(f).\nIncidentally, those regulations also suggest that compensatory mitigation can be required in\norder to ensure that an activity authorized by a Clean Water Act Section 404 permit or a\nRivers and Harbors Act Section 10 permit is \xe2\x80\x9cnot contrary to the public interest.\xe2\x80\x9d Id.\n\xc2\xa7 332.1(d). However, as noted earlier, the Corps rarely relies solely on its \xe2\x80\x9cpublic interest\xe2\x80\x9d\nauthority to support decisions involving Section 404 permits.\nThe Corps has also cited the National Environmental Policy Act (NEPA) as a basis for the\nmitigation requirements that are included in Section 404 permits. See Memorandum of\nAgreement Between the Department of the Army and the Environmental Protection\nAgency: The Determination of Mitigation Under the Clean Water Act Section 404(b)(1)\nGuidelines \xc2\xa7 II.A. (Feb. 1990) [hereinafter \xe2\x80\x9c1990 MOA\xe2\x80\x9d].\nMitigation Resources\nCorps Video on Mitigation\nNational Academy of Sciences Report on Compensatory Mitigation\n1990 MOA on Mitigation Between the Corps and EPA\nCorps Mitigation Regulations (33 C.F.R. Part 332)\nEPA Mitigation Regulations (404(b)(1) Guidelines - especially 40 C.F.R.\nPart 230, Subpart J) and EPA Fact Sheet on Mitigation\nExample of a Restrictive Covenant for Permittee Mitigation (Corps/Md.)\nModel Mitigation Plan Checklist (EPA/Corps - 2003)\n\nIII.\n\nMitigation Sequencing and Permit Conditions\n\nMitigation requirements are formulated by the Corps, with input from EPA, the Fish and\nWildlife Service and National Marine Fisheries Service, and are included as conditions in\nSection 404 permits. If EPA, the Fish and Wildlife Service, or the National Marine Fisheries\nService disagree with the mitigation requirements that the Corps plans to include in a\npermit, they can elevate their dispute to higher levels within the agencies pursuant to the\n404(q) dispute resolution process described in the last chapter. While the Corps makes the\nfinal determination regarding the mitigation conditions included in the permit, EPA retains\nthe authority to veto the permit if it concludes that the mitigation is not adequate. See\nChapter 8, infra.\nSince mitigation requirements are included as conditions in the permit, the Corps can bring\nenforcement actions against the permittee if the permittee does not comply with the\n269\n\n\x0cmitigation requirements. See 33 U.S.C. \xc2\xa7 1344(s).\nAs noted in the last chapter, when the Corps evaluates alternatives to a permit applicant\xe2\x80\x99s\nproposed project under the Section 404(b)(1) Guidelines to determine whether there are\npracticable alternatives that have less adverse impacts on the aquatic environment, the\nCorps compares the effects of the alternatives to the effects of the proposed project,\nwithout regard to any mitigation. It does not compare the effects of alternatives to the\neffects of the proposed project, as reduced by mitigation measures. It is only after the\nCorps determines that there are no practicable alternatives to the proposed discharge that\nthe Corps addresses mitigation. This approach was first announced in a 1990\nMemorandum of Agreement between the Corps and EPA. See 1990 MOA, supra.\nThe 1990 MOA creates a mitigation sequencing process to implement the\nrequirement in the Section 404(b)(1) Guidelines that the Corps must require permittees\nto take \xe2\x80\x9cappropriate and practicable steps ... [to] minimize potential adverse impacts ...\non the aquatic ecosystem.\xe2\x80\x9d See 40 C.F.R. \xc2\xa7 230.10(d). The three step sequence\nconsists of (1) avoidance; (2) minimization; and (3) compensatory mitigation; in that\norder.\nMitigation Sequence\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nAvoid\nMinimize\nMitigate\n\nAvoid: As the first step in the process, the Corps must ensure that the proposed discharge\navoids impacts to wetlands and the aquatic ecosystem. It does this through the alternatives\nanalysis described above. If there is a practicable alternative to the proposed discharge\nthat would have less adverse impacts on the aquatic environment, the Corps may not issue\na permit authorizing the proposed discharge. The 1990 MOA explicitly provided that\n\xe2\x80\x9cCompensatory mitigation may not be used as a method to reduce environmental impacts\nin the evaluation of the least environmentally damaging practicable alternatives for the\npurposes of requirements under Section 230.10(a).\xe2\x80\x9d See 1990 MOA, \xc2\xa7 II.C.1. The\nalternatives analysis, therefore, helps ensure that the permittee avoids impacts to wetlands\nand aquatic resources if practicable.\nMinimize: The second step in the mitigation sequence is minimization. Impacts to wetlands\nand the aquatic environment that cannot be avoided must be minimized. As the 1990 MOA\nnotes, the 404(b)(1) Guidelines provide that appropriate and practicable steps to minimize\nadverse impacts will be required through project modifications and permit conditions. See\n40 C.F.R. \xc2\xa7 230.10(d) Subpart H of the Guidelines outlines several actions to minimize\n270\n\n\x0cimpacts, including actions concerning the location of the discharge (i.e., confining it to\nminimize smothering organisms); actions concerning the material to be discharged (i.e., to\nreduce the potency and availability of pollutants); actions controlling the material after\ndischarge (i.e., capping contaminated material with clean material); actions affecting the\nmethod of dispersion (setting limits on the amount of material discharged per unit of time or\nvolume of receiving water); actions affecting plant and animal populations (i.e., avoiding\nsites having unique habitat value) and others. See 40 C.F.R. Part 230, Subpart H. The\nCorps includes such requirements as conditions of Section 404 permits.\nMitigate: The final step in the mitigation sequence is compensatory mitigation. Since a\nproposed discharge may still cause adverse impacts to the aquatic environment after the\nCorps has required the permittee to avoid and minimize the impacts, the Corps includes\nconditions in Section 404 permits to require compensatory mitigation for those remaining\nadverse effects. The MOA provides \xe2\x80\x9cAppropriate and practicable compensatory mitigation\nis required for unavoidable adverse impacts which remain after all appropriate and\npracticable minimization has been required.\xe2\x80\x9d See 1990 MOA \xc2\xa7 II.C.3.\nIn addition to creating the mitigation sequence to be used when evaluating Section 404\npermit applications, the 1990 MOA clearly provided that mitigation requirements \xe2\x80\x9cshall be\nconditions\xe2\x80\x9d of Section 404 permits and that the Corps should deny Section 404 permits \xe2\x80\x9c[i]f\nthe mitigation plan necessary to ensure compliance with the Guidelines is not reasonably\nimplementable or enforceable.\xe2\x80\x9d Id. \xc2\xa7 III.E.\nThe 1990 MOA was challenged shortly after the agencies entered into the agreement, but\nthe federal district court hearing the challenge held that the MOA was an interpretive rule,\nrather than a substantive or legislative rule, and that the challenge to the MOA was not ripe.\nSee Municipality of Anchorage v. United States, 21 ELR 20119 (D. Alaska 1990), aff\xe2\x80\x99d 980\nF.2d 1320 (9th Cir. 1992).\nThe legality of mitigation sequencing no longer depends on the legality or enforceability of\nthe 1990 MOA, however, as the Corps and EPA incorporated the sequencing requirement\ninto the 2008 mitigation regulations. See 33 C.F.R. \xc2\xa7 332.1(c). While those regulations\nsuperseded most of the other mitigation guidance documents issued by the Corps prior to\nthe regulations, the regulations provided that the 1990 MOA remained in effect, except for\nportions of the MOA that addressed the amount, type and location of compensatory\nmitigation projects. Id. \xc2\xa7 332.1(f)(2).\n\n271\n\n\x0cIV.\n\nAmount and Type of Mitigation Required\n\nA.\n\nNo Net Loss\n\nThe presumptions and policies that the Corps uses to determine how much compensatory\nmitigation and what type of compensatory mitigation are required have evolved over time,\nbut have always left considerable discretion in the hands of the individuals that are\nreviewing the permit applications. However, the overarching goal to be used in calculating\nthe amount and type of mitigation has remained fairly constant. Beginning with the 1990\nMOA, the Corps and EPA indicated that they would \xe2\x80\x9cstrive\xe2\x80\x9d, in making decisions regarding\ncompensatory mitigation, \xe2\x80\x9cto achieve a goal of no overall net loss of values and\nfunctions.\xe2\x80\x9d See 1990 MOA \xc2\xa7 II.B. However, they stressed that the goal \xe2\x80\x9cmay not be\nachieved in each and every permit action.\xe2\x80\x9d Id. In theory, therefore, in most cases, the\ncompensatory mitigation that will be required for each permit should replace the values\nand functions (and not simply acreage) of the wetlands that will be destroyed or degraded\nby the project authorized by the permit. The \xe2\x80\x9cno net loss\xe2\x80\x9d policy was re-affirmed in\nRegulatory Guidance Letters in 2001, see U.S. Army Corps of Engineers , RGL 01-01,\nGuidance for the Establishment and Maintenance of Compensatory Mitigation Projects\nUnder the Corps Regulatory Program Pursuant to Section 404(a) of the Clean Water Act\nand Section 10 of the Rivers and Harbors Act of 1899 (Oct. 31, 2001), and 2002, see U.S.\nArmy Corps of Engineers, RGL 02-02, Guidance on Compensatory Mitigation Projects for\nAquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404\nof the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 \xc2\xa7 2.c. (Dec.\n24, 2002) (clarifying that Districts will strive to achieve the goal on a cumulative basis, even\nthough it may not be achieved for every permit action, and that the Corps will achieve the\ngoal programmatically). While the Corps\xe2\x80\x99 2008 permit regulations did not explicitly codify\nthe \xe2\x80\x9cno net loss\xe2\x80\x9d policy, the preamble to the regulations indicated that the portions of the\n1990 MOA that created the policy were not superseded by the regulations. See 70 Fed.\nReg. at 19603.\nB.\n\nOn-site and in-kind\n\nWhile the \xe2\x80\x9cno overall net loss of values and functions\xe2\x80\x9d goal has not changed, the manner in\nwhich it has been implemented in permit decisions has changed over time. The 1990 MOA\nestablished preferences for \xe2\x80\x9con-site\xe2\x80\x9d compensatory mitigation and \xe2\x80\x9cin-kind\xe2\x80\x9d compensatory\nmitigation. The MOA indicated that compensatory actions \xe2\x80\x9cshould be undertaken, when\npracticable, in areas adjacent or continuous to the discharge site.\xe2\x80\x9d See 1990 MOA \xc2\xa7 II.C.3.\nIn addition, it provided that \xe2\x80\x9c[i]f on-site compensatory mitigation is not practicable, off-site\ncompensatory mitigation should be undertaken in the same geographic area if practicable.\xe2\x80\x9d\nId. Since the goal of the mitigation was to replace the values and functions of the wetlands\ndestroyed or degraded by the permitted discharge, mitigation measures at or near the site\nof those wetlands were deemed to be more likely to replace those values and functions. If a\nwetland is providing flood control for a particular area, for instance, creation of another\n272\n\n\x0cwetland at a different location is unlikely to serve that same function. The preference for \xe2\x80\x9cinkind\xe2\x80\x9d compensation (replacement of a particular type of wetland lost with a similar type of\nwetland) was based on similar considerations. As noted in Chapter 1, infra, a freshwater\nmarsh will likely provide values and functions that may not be replaced by a forested\nswamp. The policy presumed that wetlands were more likely to replace the values and\nfunctions of wetlands destroyed or degraded if the mitigation wetlands were the same type\nof wetlands as those destroyed or degraded.\nOn-site and in-kind mitigation may be more likely to replace the values and functions of the\nwetlands being destroyed or degraded by a section 404 permitted discharge than off-site or\nout-of-kind mitigation if the mitigation measures are actually being implemented\nsuccessfully. However, in 2001, the National Research Council of the National\nAcademy of Sciences issued a report that suggested that the Corps was not adequately\nmonitoring mitigation projects and that the literature on mitigation at the time suggested that\n\xe2\x80\x9crequired mitigation projects often are not undertaken or fail to meet permit conditions.\xe2\x80\x9d See\nNational Research Council. Compensating for Wetland Losses Under the Clean Water Act\n3 (The National Academies Press, 2001) [hereinafter \xe2\x80\x9cNRC Mitigation Report\xe2\x80\x9d]. The Council\nsuggested that the Corps should consider the values and functions that wetlands serve\nwithin a watershed when making mitigation decisions, rather than simply focusing on the\nimpacts at or near the site. Id. at 3-4. The Council suggested that \xe2\x80\x9ca preference for on-site\nand in-kind mitigation should not be automatic, but should follow from an analytically based\nassessment of the wetland needs in the watershed and the potential for the compensatory\nwetland to persist over time.\xe2\x80\x9d Id. The Council\xe2\x80\x99s report explained that on-site mitigation\nmeasures may frequently be unsuccessful because the hydrology, soils and vegetation at\nthe site may not support the mitigation project, and recommended selection of sites to\npromote development of self-sustaining mitigation. Id. at 4-5. Regarding the preference for\n\xe2\x80\x9cin-kind\xe2\x80\x9d mitigation, the report also noted that some types of wetlands, such as fens and\nbogs, could not be restored based on the knowledge at the time of the report. Id. at 4.\nThe Corps responded to the National Research Council Report by issuing a 2001\nRegulatory Guidance Letter that softened the preferences. See RGL 01-01, supra. The\nagency was heavily criticized because it made major changes to the 1990 MOA in the RGL\nwithout involving EPA or other agencies in the development of the policy, so the agency\nreplaced that Guidance Letter a year later with a new Regulatory Guidance Letter that it\ndeveloped with input from the other agencies. See RGL 02-02, supra. The new guidance\nindicated that mitigation should be used to \xe2\x80\x9cmaintain wetland functional levels within a\nwatershed\xe2\x80\x9d and that off-site mitigation could be used \xe2\x80\x9cwhen it provides more watershed\nbenefit than on-site mitigation.\xe2\x80\x9d Id. \xc2\xa7 2.g. Similarly, the guidance indicated that out-of-kind\nmitigation was appropriate when it was \xe2\x80\x9cpracticable and provides more environmental or\nwatershed benefit than in-kind compensation.\xe2\x80\x9d Id. \xc2\xa7 2.h.\nThat Guidance was superseded by the 2008 regulations, though, which now establish a\nhierarchy for selecting compensatory mitigation and which establish a preference for\n273\n\n\x0cselecting mitigation based on a watershed approach. See 33 C.F.R. \xc2\xa7 332.3(b)(4). Thus,\nthe 1990 MOA preference for on-site, in-kind mitigation has been replaced by a preference\nfor selecting mitigation on a watershed basis. In situations where a watershed approach is\nnot practicable, though, the regulations maintain a preference for on-site and in-kind\nmitigation over off-site and out-of-kind mitigation. Id. \xc2\xa7 332.3(b)(5).\nC.\n\nRatios and Timing\n\nTwo other important issues that arise concerning compensatory mitigation involve the\namount of mitigation that will be required and the timing of the mitigation project. Regarding\nthe amount of mitigation, the 1990 MOA recognized that implementation of the \xe2\x80\x9cno net\nloss\xe2\x80\x9d goal meant that mitigation should provide at least a one to one replacement of the\nvalues and functions of wetlands, and not simply a one to one replacement of acreage.\nSee 1990 MOA \xc2\xa7 II.B. However, the MOA also provided that in the absence of more\ndefinitive information on the functions and values of specific wetlands, a minimum 1 to 1\nacreage replacement ratio may be used as a reasonable surrogate for no net loss of\nvalues and functions. Id. Thus, if 10 acres of wetlands were being destroyed or degraded,\nthe Corps could require the permittee to provide 10 acres of wetlands mitigation in the\nabsence of more definitive information on the values and functions of those wetlands.\nEven if it is possible to precisely identify the values and functions that are being lost when a\nwetland is destroyed or degraded and to precisely identify the values and functions that\ncould be provided by wetlands that may be restored, enhanced, created, or preserved, the\nratio adopted by the Corps for mitigation projects will vary depending on the type of project\n(restoration, enhancement, creation, or preservation) because some types of mitigation\nprojects, like preservation, do not provide any increase in values or functions to offset the\nvalues and functions lost, and because some mitigation projects, like restoration, may have\ngreater chances to succeed than others, like wetlands creation.\nThe 1990 MOA recognized this dynamic, providing that the 1 to 1 ratio \xe2\x80\x9cmay be greater\nwhere the functional values of the area being impacted are demonstrably high and the\nreplacement wetlands are of lower functional value or the likelihood of success of the\nmitigation project is low [and that ] ... the ratio may be less than 1 to 1 for areas where the\nfunctional values associated with the area being impacted are demonstrably low and the\nlikelihood of success associated with the mitigation proposal is high.\xe2\x80\x9d Id. Accordingly, while\nthe Corps might require a permittee to restore 10 acres of wetlands to replace 10 acres of\nwetlands (1:1 ratio), they may require the permittee to create 30 acres (3:1 ratio), instead of\nrestoring 10, to replace those wetlands, since the likelihood of successful wetland creation\nmay be lower than the likelihood of successful restoration.\nThe Corps re-affirmed the 1990 MOA approach in the 2002 Regulatory Guidance Letter,\nsee RGL 02-02, supra, but the 2008 regulations superseded both that RGL and the portion\nof the 1990 MOA that created that approach. The regulations adopt a similar approach,\n274\n\n\x0cthough, and provide little more certainty regarding specific ratios than the prior guidance\nprovided. Specifically, the regulations indicate that the amount of compensatory mitigation\nmust be sufficient to replace \xe2\x80\x9clost aquatic functions\xe2\x80\x9d, based on \xe2\x80\x9cappropriate functional or\nconditional assessment methods or other suitable metrics.\xe2\x80\x9d See 33 C.F.R. \xc2\xa7 332.3(f)(1).\nWhere those methods or metrics aren\xe2\x80\x99t available, the regulations provide that \xe2\x80\x9ca minimum\none to one acreage or linear foot compensation ratio must be used.\xe2\x80\x9d Id. They also require\nthe permit issuer (district engineer) to require a ratio greater than one to one \xe2\x80\x9cto account for\nthe method of compensatory mitigation (e.g., preservation), the likelihood of success,\ndifferences between the functions lost at the impact site and the functions expected to be\nproduced by the compensatory mitigation project, temporal losses of aquatic resource\nfunctions, the difficulty of restoring or establishing the desired aquatic resource type and\nfunctions, and/or the distance between the affected aquatic resource and the compensation\nsite.\xe2\x80\x9d Id. \xc2\xa7 332.3(f)(2).\nWhile the guidance and regulations leave considerable discretion to the permit issuer to\nidentify specific ratios for compensatory mitigation, in practice, most Districts have adopted\nguidance that identify ratios for specific types of mitigation projects. See Margaret Strand,\nWetlands Deskbook 93 (Environmental Law institute, 3d ed., 2009).\nRegarding the timing of compensatory mitigation, in light of concerns that many mitigation\nprojects were not being implemented or were not succeeding, the 2001 National Research\nCouncil report recommended that \xe2\x80\x9ccompensatory mitigation should be in place concurrent\nwith, and preferably before, permitted activity\xe2\x80\x9d and that \xe2\x80\x9cthere should be effective legal and\nfinancial assurances for long-term site sustainability and monitoring of all compensatory\nwetland projects\xe2\x80\x9d. See NRC Mitigation Report, supra, at 7. The 2008 regulations codified\nthose requirements, (1) providing that \xe2\x80\x9c[i]mplementation of the compensatory mitigation\nproject shall be, to the maximum extent practicable, in advance of or concurrent with the\nactivity causing the authorized impacts\xe2\x80\x9d; (2) requiring additional compensatory mitigation to\noffset any losses of wetland functions that occur between the time of the discharge and the\nimplementation of the mitigation, see 33 C.F.R. \xc2\xa7 332.3(m); and (3) requiring \xe2\x80\x9csufficient\nfinancial assurances to ensure a high level of confidence that the compensatory mitigation\nproject will be successfully completed.\xe2\x80\x9d Id. \xc2\xa7 332.3(n).\n\n275\n\n\x0cQuestions and Comments\n1.\n\nMonitoring: Although the 1990 MOA indicated that monitoring was an important\naspect of mitigation, see 1990 MOA \xc2\xa7 III.D, the 2001 National Academy of Sciences\nNational Research Council Report suggested that the Corps was not adequately\nmonitoring and tracking the success of mitigation projects associated with Section\n404 permits. See NRC Mitigation Report, supra, at 3. A 2005 Government\nAccountability Office (GAO) report also concluded that the Corps was infrequently\nmonitoring and rarely inspecting compensatory mitigation projects. See U.S.\nGovernment Accountability Office, GAO-05-898, Corps of Engineers Does Not Have\nan Effective Oversight Approach to Ensure That Compensatory Mitigation is\nOccurring (Sept. 8, 2005). In light of those reports, the Corps\xe2\x80\x99 2008 mitigation\nregulations require permittees to monitor the mitigation and submit reports pursuant\nto a monitoring plan approved by the Corps, but the regulations provide flexibility to\nthe Corps to tailor the monitoring requirements and reporting frequency to the\nspecific mitigation project. See 33 C.F.R. \xc2\xa7 332.6. For a detailed examination of the\nrole that outside organizations have played, or should play, in monitoring and\nenforcing mitigation requirements, see Jessica Owley, The Increasing Privatization\nof Environmental Permitting, 46 Akron L. Rev. 1091 (2013).\n\n2.\n\nSuccess of mitigation: Various studies have found that (1) fewer than 30% of the\nmitigation sites reviewed were successful in replacing the functions of the wetlands\nsites that they replaced; (2) fewer than 50% of mitigation sites reviewed were\necologically successful; and (3) failure rates for some types of wetlands are\nsignificantly higher than the failure rate for other types of wetlands, resulting in a\nshift in the predominance of various types of wetlands. See Rebecca L. Kihslinger,\nSuccess of Wetland Mitigation Projects, 30:2 National Wetlands Newsletter 14, 15\n(2008). In addition, a recent EPA Office of the Inspector General report criticized\nEPA for claiming that the agency reported \xe2\x80\x9cno net loss\xe2\x80\x9d of wetlands in the Section\n404 regulatory program for fiscal years 2009-2011 because the agency presumed\nthat mitigation projects for permitted activities will meet performance standards,\nwhen many of the projects failed to meet those standards. See U.S. Environmental\nProtection Agency, Office of the Inspector General, Report No. 14-P-0191, EPA\nNeeds to Clarify its Claim of \xe2\x80\x9cNo Net Loss\xe2\x80\x9d of Wetlands 1-3 (April 16, 2014). How\nshould the information reported by Rebecca Kihslinger and the information in the\nInspector General report affect permitting and mitigation decisions?\n\n3.\n\nMitigation Planning: The 2008 mitigation regulations also established planning\nrequirements for mitigation, so that each mitigation project must have a mitigation\nplan approved by the Corps including the following elements:\n\n276\n\n\x0cObjectives\n\nAmount, Type and Method (restoration, etc.) of mitigation and the\nmanner in which it addresses the needs of the watershed\n\nSite Selection\n\nFactors considered in selecting the mitigation site\n\nSite Protection\nInstrument\n\nLegal instruments to be used to protect the mitigation site (e.g.\nconservation easement)\n\nBaseline information\n\nDescription of the mitigation site before mitigation\n\nDetermination of\ncredits\n\nExplanation of how the proposed mitigation site provides sufficient\ncompensation for impacts from the permitted activity\n\nMitigation Work Plan\n\nDetailed work plan for developing the mitigation project\n\nMaintenance Plan\n\nPlan for maintenance after initial construction is completed\n\nPerformance\nstandards\n\nEcologically-based standards to be used to determine whether the\nmitigation is meeting its objectives\n\nMonitoring\nRequirements\n\nPlan outlining parameters to be monitored, and the timing of\nmonitoring and reporting\n\nLong Term\nManagement Plan\n\nPlan for long-term sustainability, including financing and\nidentification of the persons responsible for long-term management\n\nAdaptive\nManagement Plan\n\nStrategy to address unforeseen changes in site conditions or other\ncomponents of the mitigation project\n\nFinancial Assurances\n\nFinancial assurances for the project (e.g. performance bond)\n\nSee 33 C.F.R. \xc2\xa7 332.4(c).\n4.\n\nShortly after the agencies adopted the 2008 mitigation rule, several members of the\nNational Research Council\xe2\x80\x99s Committee on Mitigating Wetland Losses critiqued the\nrule, discussing discuss the importance of the watershed approach, adaptive\nmanagement and implementation of the rule. See Royal C. Gardner, Joy Zedler,\nAnn Redmond, R. Eugene Turner, Carol A. Johnston, Victoria R. Alvarez, Karen L.\nPrestegaard, and William J. Mitsch, Compensating for Wetland Losses Under the\nClean Water Act (Redux): Evaluating the Federal Compensatory Mitigation\nRegulation, 33 Stetson L. Rev. 213 (2009). For a detailed examination of the\necosystem focus of the new regulations, see J.B. Ruhl, James Salzman & Iris\nGoodman, Implementing the New Ecosystem Services Mandate of the Section 404\nCompensatory Mitigation Program - A Catalyst for Advancing Science and Policy,\n38 Stetson L. Rev. 251 (2009).\n\n277\n\n\x0cV.\n\nMitigation Banking\n\nAlthough the Corps initially required permittees to undertake compensatory mitigation\nprojects themselves on land that they owned or would acquire (permittee responsible\nmitigation), other mitigation alternatives have gained popularity over time and the 2008\nmitigation regulations established a preference for those other alternatives. The major\nalternatives to permittee responsible mitigation are mitigation banking and in lieu fee\nprograms (which will be discussed later in this chapter).\nIn mitigation banking, a person or entity restores, enhances, creates or preserves\nwetlands in a compensatory mitigation project and generates credits that can be used to\nsatisfy mitigation requirements for a Section 404 permit. See 33 C.F.R. \xc2\xa7 332.2. While the\nfirst mitigation banks generated credits that the banker would use to satisfy mitigation\nrequirements for projects that the banker was undertaking, many mitigation banks today\nare entrepreneurial banks, and sell credits to third parties who are engaged in\ndevelopment projects and need to provide compensatory mitigation as a condition of\nobtaining a Section 404 permit.\nAlthough the 1990 MOA between the Corps and EPA provided that mitigation banking\ncould be an acceptable form of compensatory mitigation, see 1990 MOA \xc2\xa7 III.C, the MOA\nlimited the situations in which banking could be used, since the MOA created the\npreference for on-site, in-kind mitigation described above. Entrepreneurial banks, by their\nnature, will be used to provide mitigation for many different projects and will not generally\nbe on-site of any of those projects. As the preference for on-site, in-kind mitigation softened\nand the Corps developed mitigation banking guidance, see Federal Guidance for the\nEstablishment, Use and Operation of Mitigation Banks, 68 Fed. Reg. 58605 (Nov. 28,\n1995) [hereinafter \xe2\x80\x9cMitigation Banking Guidance\xe2\x80\x9d], mitigation banking became much more\npopular.\nA.\n\nBenefits of Mitigation Banking\n\nMitigation banking provides benefits for the environment, the government and permit\napplicants. As noted above, the National Academy of Sciences raised concerns that many\nof the traditional permittee-responsible mitigation projects were not successful. Mitigation\nbanking addresses that problem because the mitigation banks must meet performance\nstandards before credits are released and can be used to satisfy permit requirements. See\n33 C.F.R. \xc2\xa7 332.8. Thus, it is less likely that the mitigation will result in a loss of wetland\nfunctions. In addition, mitigation banks are more likely to generate successful mitigation\nbecause they can bring together money and expertise that the individual permittees would\nnot be able to access if they were developing mitigation projects on-site separately. See\nMitigation Banking Guidance at 58,607. Mitigation banks can provide additional\nenvironmental benefits compared to a series of separate, smaller mitigation projects, in that\n278\n\n\x0c\xe2\x80\x9c[i]t may be more advantageous for maintaining the integrity of the aquatic ecosystem to\nconsolidate compensatory mitigation into a single large parcel or contiguous parcels\xe2\x80\x9d. Id.\nThe Corps and EPA benefit from mitigation banking because it is easier to monitor and\nenforce mitigation requirements when the mitigation projects are consolidated in a large\nparcel or contiguous parcels, as opposed to dozens or hundreds of locations around a\nstate. Id. Better monitoring and enforcement also benefits the environment, by increasing\nthe likelihood that the mitigation will be successful. While a 2005 GAO report criticized the\nCorps\xe2\x80\x99 monitoring of mitigation banking projects, it concluded that the Corps provided more\noversight for those projects than it provided for the permittee-responsible projects. See\nGAO Mitigation Oversight Report, supra.\nFinally, permit applicants benefit from mitigation banking because applicants can obtain\npermits quicker and at a lower cost if they can obtain credits from a mitigation bank than if\nthey develop permittee responsible mitigation projects. See Mitigation Banking Guidance at\n58,607. Applicants will save time because the Corps should be able to review a mitigation\nproject involving purchase of credits from a mitigation bank much more quickly than it could\nevaluate a site-specific mitigation proposal prepared by the permit applicant. Applicants\nshould be able to save money because the economies of scale involved in developing a\nmitigation bank should make mitigation credits from banks less expensive than on-site\nmitigation projects.\nPermit applicants also receive another important benefit through mitigation banking. When\na permit applicant satisfies its mitigation requirement by purchasing credits from a\nmitigation bank approved by the Corps of Engineers, the Corps will include that as a\ncondition of the permit and the mitigation banker, rather than the permittee, will be\nresponsible for the success of the mitigation. The permittee will not be required to provide\nalternative mitigation if the bank\xe2\x80\x99s mitigation fails.\nQuestions and Comments\n1.\n\nSize matters: Although the federal guidance suggested that it may be more\nadvantageous to consolidate mitigation into a larger parcel, environmental\nadvocates have pointed out that small, isolated wetlands provide unique ecological\nand water quality functions and that an assemblage of a series of small wetlands\nscattered across a wide geographic area can provide habitat benefits that a single\nlarge wetland cannot provide. See Environmental Law Institute, Banks and Fees:\nThe Status of Off-Site Wetland Mitigation in the United States 28 (Sept. 2002)\n[hereinafter \xe2\x80\x9cELI Mitigation Banking Study\xe2\x80\x9d].\n\n279\n\n\x0c2.\n\nSuccess: Despite the benefits outlined above, some studies have suggested that\nmitigation banks are no more successful at replacing wetland values and functions\nthan permittee-responsible mitigation. See Rebecca L. Kihslinger, Success of\nWetland Mitigation Projects, 30:2 National Wetlands Newsletter 14, 15 (2008).\n\n3.\n\nTakings: What effect might a robust mitigation banking system as an option for\ncompensatory mitigation have on wetland permitting decisions and the likelihood\nand success of takings challenges based on Section 404 permit denials? See\nChapter 11, infra, for an extended discussion of regulatory takings.\n\n4.\n\nLimitations: If compensatory mitigation is designed to replace the functions and\nvalues of wetlands that are destroyed or degraded by a Section 404 permitted\nactivity, can you see where that might be difficult to do in some cases by relying on\nmitigation banking? Can mitigation banking be reconciled with the goal of \xe2\x80\x9cno net\nloss\xe2\x80\x9d?\n\nB.\n\nHistorical Development\n\nAs noted above, the 1990 MOA authorized mitigation banking as a form of compensatory\nmitigation, but created some roadblocks to its broad adoption by establishing the on-site,\nin-kind mitigation preference. In the early years of mitigation banking, most of the mitigation\nbanks were single-user banks, where an entity that was engaged in a series of\ndevelopment projects that required Section 404 permits would develop a large\ncompensatory mitigation project in advance of those development projects, and would rely\non that project to serve as compensatory mitigation for the Section 404 permits that it would\nneed to obtain for the future development projects. While some of those early banks were\noperated by private developers, most were operated by public entities. By 1992, for\ninstance, almost half of the mitigation banks in existence were developed by state\ndepartments of transportation for their road development projects. See ELI Mitigation\nBanking Study at 15. Congress encouraged this trend by making federal highway funding\navailable for such mitigation banks in the Intermodal Surface Transportation Efficiency Act\nof 1991, Pub. L. 102-240, 105 Stat. 1914 (2001).\nMitigation banking began to gain popularity after the Corps, EPA, the Natural Resources\nConservation Agency and NOAA issued federal mitigation banking guidance in 1995. See\nMitigation Banking Guidance, supra. The guidance identified legal authority for mitigation\nbanking and outlined a process for review and approval of mitigation banks, creating much\nmore certainty for prospective mitigation bank developers. Id. It also emphasized that the\nagencies\xe2\x80\x99 preference for on-site mitigation should not preclude the use of mitigation\nbanking when banking is environmentally preferable. Id. \xc2\xa7 II.D.4.\nIn 1998, Congress fueled the growth of mitigation banks further by expressing a preference\nfor their use on federally funded highway projects. See Transportation Equity Act for the\n280\n\n\x0c21st Century, Pub. L. No. 105-178, 112 Stat. 107 (1998). Between 1993 and 2000, the\nnumber of mitigation banks approved by the Corps of Engineers grew from 44 to more than\n230. See Royal C. Gardner, Mitigation in Wetlands Law and Policy: Understanding Section\n404 266 (American Bar Association, Section on Environment, Energy and Resources\n2005). By 2005, 405 mitigation banks had been approved by the Corps, and 72% of those\nwere entrepreneurial banks. See Royal C. Gardner, Lawyers, Swamps, and Money 119\n(Island Press 2011). Despite the growth in popularity of banks, developers complained that\nthe agency\xe2\x80\x99s mitigation guidelines placed them at a disadvantage with respect to traditional\npermittee-responsible mitigation. According to a 2006 study, permittee-responsible\nmitigation still accounted for approximately 60% of wetland mitigation at that time, based on\nmitigation acreage. Id. at 140.\nIn 2008, when the Corps adopted its mitigation regulations, the agency indicated that the\nrule applied equivalent standards and criteria to all sources of compensatory mitigation, to\nthe maximum extent practicable. See 73 Fed. Reg. 19594 (Apr. 10, 2008). However, the\nfinal rules largely abandoned the on-site mitigation preference and created a hierarchy of\npreferred methods of compensatory mitigation, with mitigation banking at the top of the\nhierarchy. See 33 C.F.R. \xc2\xa7 332.3(b). The hierarchy proceeds as follows:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nMitigation Banking\nIn Lieu Fee Programs\nPermittee-responsible mitigation under a watershed approach\nPermittee-responsible mitigation through on-site and in-kind mitigation\nPermittee-responsible mitigation through off-site and out-of-kind mitigation\n\nId. Within a few years after the regulations were adopted, the number of banks approved by\nthe Corps had grown to over 1000. See Royal C. Gardner, Lawyers, Swamps, and Money\n119 (Island Press 2011).\nC.\n\nNuts and Bolts of Mitigation Banking\n\nA mitigation bank can only generate credits that can be used for compensatory mitigation if\nthe bank is authorized to do so by the Corps of Engineers through an approved a\nmitigation banking instrument. See 33 C.F.R. \xc2\xa7 332.8.\nIn order to receive approval from the Corps, the bank must prepare a mitigation plan that\nincludes the same elements described above for permittee-responsible mitigation (i.e.,\nobjectives, baseline information, work plan, financial assurances, etc.). See 33 C.F.R.\n\xc2\xa7 332.4(c). Mitigation banking instruments are reviewed by an interagency review team\n(IRT) that includes representatives of the Corps, EPA, Fish and Wildlife, NOAA, and can\ninclude representatives of state, local and tribal resource agencies in appropriate\n281\n\n\x0ccircumstances. See 40 C.F.R. \xc2\xa7 230.98(b).\nWhen a bank is approved by the Corps, it will be approved with a specific geographic\nservice area, meaning that the credits generated by mitigation from the bank can only be\nused as compensatory mitigation for projects within that service area. See 33 C.F.R.\n\xc2\xa7 332.3(b)(2). Normally, mitigation banks can only sell credits for use within the watershed\nin which the bank is located. Id. \xc2\xa7 332.3(b)(1). While bankers would prefer larger service\nareas that include more potential customers, it is more likely that the mitigation provided by\nthe bank will offset the impacts of the development for which the mitigation is provided\nwhen the bank is located in the same watershed as the development. While banks may be\nallowed to sell some credits before their mitigation project has been completed, the\nmitigation banking instrument will outline milestones that the bank must meet before issuing\nspecific amounts of credits. Id. \xc2\xa7 332.3(b)(1). The regulations provide that a significant\nshare of the credits from the bank should be withheld until the bank fully achieves the\necological performance standards set forth in the banking instrument. See 40 C.F.R.\n\xc2\xa7 230.98(o)(8).\nQuestions and Comments\n1.\n\nCost of credits: Neither the Corps nor any other agency regulates the cost of\nmitigation credits sold by banks. The bank can determine the price that it would like\nto charge for the credits and Section 404 permit applicants can decide whether to\nbuy the credits at that price, buy from another banker at a different price, or develop\ntheir own mitigation proposal. The Ecosystem Marketplace estimates that the\naverage cost of mitigation credits in 2008 was $74,535 per acre, although the prices\nranged from $3,000 to $653,000 per acre. See Ecosystem Marketplace, U.S.\nWetland Banking. They also estimated that developers spent over $1 billion on\nwetland mitigation credits in 2008. Id.\n\n2.\n\nResponsibility: As noted above, when a permit applicant receives approval from\nthe Corps to satisfy the compensatory mitigation requirements for a Section 404\npermit by purchasing credits from a mitigation bank, the bank is then responsible,\nrather than the permit applicant, for the success of the mitigation. See 33 C.F.R.\n\xc2\xa7 332.2. Thus, if the mitigation fails, the Corps will not bring an enforcement action\nagainst the permittee for violating the permit conditions and will not require the\npermittee to provide alternate mitigation. Instead, the Corps will likely suspend the\nmitigation bank\xe2\x80\x99s operation and prevent additional credit releases and sales.\n\n3.\n\nSize: As of 2011, the average size of approved mitigation bank sites was 466 acres,\nalthough the average size varied considerably by region. For instance, the average\nsize of banks in Minnesota, which had the most approved and operational banks at\nthat time, was 49 acres, while the average size of banks in Florida was 1,999 acres.\nSee Steven Martin and Robert Brumbagh, Entering a New Era: What Will RIBITS\n282\n\n\x0cTell Us About Mitigation Banking?, 33 Natl. Wetlands Newsletter, 3:16 (2011).\n4.\n\nIn addition to wetland mitigation banking, several other emerging markets, such as\nwater quality trading, species conservation banks, and greenhouse gas trading, can\nencourage wetland preservation. For an interesting overview of the issues raised by\nthe commodification of wetlands, see Fred Bosselman, Swamp Swaps: The \xe2\x80\x98Second\nNature\xe2\x80\x99 of Wetlands, 39 Envtl. L. 577 (2009). See also, James Salzman & J.B. Ruhl,\nCurrencies and the Commodification of Environmental Law, 53 Stanford L. Rev. 607\n(2000).\n\n5.\n\nFor a detailed description of the development of mitigation banking and the\noperation of mitigation banks, see Royal C. Gardner, Banking on Entrepreneurs:\nWetlands, Mitigation Banking and Takings, 81 Iowa L. Rev. 527 (1996).\nMitigation Banking Resources\nRIBITS (Corps\xe2\x80\x99 Regulatory In Lieu Fee and Bank Information Tracking System - search for\nmitigation banks, service area, credits available, reports, etc.)\n1995 Mitigation Banking Guidance (superseded by the 2008 mitigation regulations\nEPA Mitigation Banking Website\nEcological Restoration Business Association (ERBA) website\n2005 GAO Mitigation Oversight Report\nELI Report on Mitigation Banking (2002)\nEcosystem Marketplace - Cost of Mitigation Credits (2008)\nModel Mitigation Banking Instrument (Corps - but predates 2008 regulations)\nExample of a Mitigation Banking Restrictive Covenant (Corps/Md.)\nThe Conservation Fund - Mitigation Bank Training for IRT members (includes many sample\ndocuments)\n\n283\n\n\x0cResearch Problems\nAgency Data: The Corps of Engineers maintains an online database of approved\nmitigation banks (RIBITS) that permit applicants can use to find mitigation credits for\ntheir projects. Using that database, answer the following questions:\n1. How many commercial mitigation banks in Missouri are currently approved to sell\nwetland mitigation credits? Remember that single client banks do not sell credits and\nremember to focus on banks that sell wetland credits, as the Corps database also\nincludes banks that sell stream mitigation credits.\n2. The Corps of Engineers is requiring a permit applicant in Sturgeon Lake, Minnesota\nto provide 1 acre of \xe2\x80\x9cshallow marsh\xe2\x80\x9d wetlands as mitigation for a project on his\nproperty on Island Lake Road in Sturgeon Lake, Minnesota. Please identify any\nmitigation banks that he could contact to buy those credits. It may be helpful to know\nthat the longitude and latitude coordinates of the property where the project will take\nplace are 46.415175, -92.730863.\n\nVI.\n\nIn Lieu Fee Programs\n\nIn lieu fee mitigation programs are the other alternative to traditional permitteeresponsible compensatory mitigation. In this scenario, the Corps authorizes the permittee,\nin lieu of implementing a compensatory mitigation project itself, to pay a third party that is\nimplementing a compensatory mitigation project approved by the Corps. See 33 C.F.R.\n\xc2\xa7 332.2. The entity that is performing the mitigation project must be a government or nonprofit natural resources management entity. Id. Prior to the 2008 regulations, the Corps\nfrequently entered into Memoranda of Agreement with the government or non-profit entities\nto establish guidelines for the mitigation, see Royal C. Gardner, Money for Nothing? The\nRise of Fee Mitigation, 19 Va. Envt\xe2\x80\x99l. L. J. 1, 23-30 (2000), but the responsibilities of the\nprogram sponsors are now governed by the 2008 mitigation regulations. See 73 Fed. Reg.\n19594 (Apr. 10, 2008). As with mitigation banking, in lieu fee programs involve \xe2\x80\x9coff-site\xe2\x80\x9d\ncompensatory mitigation projects.\nA.\n\nBenefits and Concerns\n\nIn lieu fee programs are different from mitigation banking programs because, in an in lieu\nfee program, the government or non-profit entity usually collects money from several\npermittees before implementing a mitigation project, and there could be a significant delay\nbetween the collection of the money and the implementation of the project. See ELI\nMitigation Banking Study at 8. Unlike mitigation banking, even if in lieu fee programs\n284\n\n\x0cultimately replace the functions of wetlands that are destroyed or degraded by Section 404\npermitted activities, there will generally be temporal losses of wetland functions. Id.\nHowever, in lieu fee programs can be used to restore a variety of wetland types of varying\nsizes in varying locations, while mitigation banks usually create, restore, enhance and/or\npreserve a single large site. Id. In addition, in lieu fee programs make it easier for the Corps\nto require mitigation for some small projects, such as those authorized by nationwide\npermits, for which the Corps might not otherwise require mitigation. See Royal C. Gardner,\nLawyers, Swamps, and Money 129 (Island Press 2011).\nFor Section 404 permit applicants, in lieu fee programs provide the same benefits as\nmitigation banking. They make it quicker and cheaper to obtain a permit, see U.S. General\nAccounting Office, GAO-01-325, Wetlands Protection: Assessments Needed to Determine\nEffectiveness of In-Lieu Fee Mitigation 9 (May 2001) [hereinafter \xe2\x80\x9cGAO In Lieu Fee\nReport\xe2\x80\x9d], and they provide certainty to the permittee by shifting the responsibility for the\nsuccess of the mitigation to a third party, the in lieu fee program sponsor.\nFor the government, to the extent that in lieu fee programs may involve smaller, scattered\nmitigation projects, as opposed to large, contiguous projects, in lieu fee programs may not\nprovide the same monitoring and enforcement efficiency as mitigation banking. However,\nby consolidating the mitigation responsibilities in fewer entities with greater resources, the\nCorps still achieves a greater level of efficiency in monitoring and enforcement than it would\nin permittee-responsible mitigation, see GAO In Lieu Fee Report at 9, and the chances of\nmitigation success may be greater due to the greater flexibility that is available to the in lieu\nfee program sponsor in selecting a site for the mitigation project. See Environmental Law\nInstitute, The Status and Character of In Lieu Fee Mitigation in the United States 3 (June\n2006).\nWhile in lieu fee programs provide benefits for the environment, the permit applicant, and\nthe government, they have also been criticized. In a 2001 report, the U.S. General\nAccounting Office raised concerns that the in lieu fees that were being collected were not\nbeing used to implement mitigation projects in a timely manner, that the Corps was not\nadequately monitoring mitigation projects in the programs, and that the mitigation provided\nby the projects was not offsetting the impacts authorized by the Section 404 permits. See\nGAO In Lieu Fee Report at 10. Similarly, a 2005 ELI report found that 58 of the 87 in lieu\nfee programs that were in place at the time of the study did not require that the funds\ncollected be spent on mitigation within a specific time frame. See ELI Mitigation Banking\nStudy at 110. Prior to the adoption of the 2008 regulations, in lieu fee programs were also\ncriticized because they frequently authorized preservation as a mitigation method. Id. at\n119-120 (88% of in lieu fee programs authorized preservation).\n\n285\n\n\x0cB.\n\nHistory and Regulation\n\nThe Corps established the first in lieu fee program in the Vicksburg, Mississippi District in\n1987, and had established 63 programs throughout the country by September, 2000. See\nGAO In Lieu Fee Report at 7.\nIn 2000, at about the same time that the GAO was issuing its report criticizing in lieu fee\nprograms, the Corps, EPA, the Fish and Wildlife Service and NOAA issued comprehensive\nin lieu fee guidance. See Federal Guidance on the Use of In-Lieu-Fee Arrangements for\nCompensatory Mitigation under Section 404 of the Clean Water Act and Section 10 of the\nRivers and Harbors Act (Oct. 2000). By 2005, the Corps had approved 87 programs in 27\nstates. See ELI Mitigation Banking Study at 99. According to a 2006 study, in lieu fee\nprograms accounted for about 8.4% of the acreage of compensatory mitigation required in\npermits at that time. See Royal C. Gardner, Lawyers, Swamps, and Money 119 (Island\nPress 2011).\nIn lieu fee programs were regulated under the federal guidance document until the Corps\nadopted the mitigation regulations in 2008, which superseded the guidance. See 33 C.F.R.\n\xc2\xa7 332.1(f)(1). As noted above, the regulations were structured to provide \xe2\x80\x9cequivalent\xe2\x80\x9d\nregulation of all types of compensatory mitigation, but created a hierarchy or preferred\nmitigation options, which placed in lieu fee programs below mitigation banking, but above\npermittee-responsible mitigation. See 33 C.F.R. \xc2\xa7 332.3(b).\nThe regulations now require in lieu fee programs to be administered pursuant to an in lieu\nfee program instrument, similar to mitigation banking instruments, see 33 C.F.R. \xc2\xa7 332.2, to\nbe approved by an interagency review team, similar to mitigation banks, see 40 C.F.R.\n\xc2\xa7 230.98(b), and to prepare mitigation plans that address the same 12 factors as the plans\nprepared by mitigation banks and by permittees engaged in permittee-responsible\nmitigation (i.e., objectives, baseline information, work plan, financial assurances, etc.). See\n33 C.F.R. \xc2\xa7 332.4(c). The regulations also require the Corps to identify a geographic\nservice area in which credits from in lieu fee programs can be used, usually limited to the\nwatershed in which the mitigation project will take place. See 33 C.F.R. \xc2\xa7 332.3(b). As with\nmitigation banking, if a permittee is authorized to satisfy its mitigation requirements by\nproviding funds to an in lieu fee program, the program sponsor, rather than the permittee is\nthen responsible for the success of the mitigation. See 33 C.F.R. \xc2\xa7 332.2. As noted above,\nthe Corps would then seek relief for any mitigation failure from the in lieu fee program\nmanager through contract law.\nAlthough the regulations treat in lieu fee programs in a manner that is similar to mitigation\nbanking in many respects, there is still one important difference between the programs.\nUnlike mitigation banks, in lieu fee programs can sell some credits and raise money as\nsoon as the program instrument has been approved and do not have to wait until the\nmitigation project can demonstrate that it has met various milestones. See 33 C.F.R.\n286\n\n\x0c\xc2\xa7 332.8(n). As the mitigation project is implemented and meets milestones, the program\nsponsors can sell additional advance credits. Id.\n\nIn Lieu Fee Program Resources\nRIBITS (Corps\xe2\x80\x99 Regulatory In Lieu Fee and Bank Information Tracking System search for mitigation banks, service area, credits available, reports, etc.)\n2008 Corps/EPA Mitigation Regulations\n2000 Federal In Lieu Fee Guidance (superseded)\nELI Report on Mitigation Banking an In Lieu Fee Programs (2002)\nELI Report on the Status and Character of In Lieu Fee Mitigation in the U.S. (2006)\nIn Lieu Fee Mitigation: Model Instrument Language and Resources (ELI - 2009)\nELI In Lieu Fee Training Webinars (2013)\nIn Lieu Fee Programs Approved by the Corps\xe2\x80\x99 Sacramento District\n\nHypothetical\nIn a 2006 article, Professors J.B. Ruhl and James Salzman pointed out that when a developer\nuses mitigation banking, as opposed to on-site, in-kind mitigation, to satisfy mitigation\nrequirements for Section 404 permits, the environmental and public benefits provided by the\nwetlands that are being destroyed are transferred from the area where the development is\ntaking place to the area where the mitigation bank is located. See J.B. Ruhl & James\nSalzman, The Effects of Wetland Mitigation Banking on People, 28 Natl. Wetlands Newsletter\n8 (2006). Professors Ruhl and Salzman noted that this often means that development is\ndestroying wetlands in urban areas and replacing them with wetlands in rural areas. Id.\nMitigation banking, therefore, may raise some environmental justice concerns in its\nadministration.\nConsider that as you read the following dialogue between a lawyer and a client regarding\nmitigation requirements for a Clean Water Act Section 404 permit. The client has applied to\nthe Corps of Engineers for a permit to fill 1 acre of coastal wetlands to build a parking deck in\ndowntown Mobile, Alabama.\n\n287\n\n\x0cScene: Lawyers Office in downtown Mobile, Alabama\nLawyer: Thanks for stopping by this morning. I know that you\'re busy, but I just wanted to\nupdate you on your permit application.\nClient: Great. I\'ve been sitting on that swampland for years. It will be great to finally get some\nmoney out of it.\nLawyer: Well, you\'ll be happy to know that the Corps will probably grant your permit for the\nparking deck, but we just need to come to some agreement on the mitigation requirements.\nClient: OK. So what are my options? The last time we talked about this, you told me that the\nCorps wanted me to clean up some of the other wetlands near my property or build new ones\nnear my property. I think you said that they wanted 4 acres of wetlands to make up for the 1\nthat I was filling. Is that still what they want?\nLawyer: They still would prefer that mitigation, but they are also willing to allow you to buy\nmitigation credits from the South Alabama Mitigation Bank in Citronelle, Alabama. If you\nbought credits from the mitigation bank, it would cost about $80,000 for the credits.\nClient: That sounds better than the $100,000 it was going to cost me to clean up or build\nswamps near my property.\nLawyer: I agree that credits from the mitigation bank will be less expensive, but I think that\nthere are some other factors that you might want to consider in choosing the mitigation.\nWhen we discussed mitigation with the Corps before, they were exploring the on-site options\nbecause a lot of the coastal wetlands around Mobile are being developed and they felt that\nrestoration or creation of wetlands on or near your property would help prevent flooding in\nMobile and would help protect the shrimp fisheries in the Mobile Bay. The South Alabama\nMitigation bank is located about 40 miles north of Mobile, so the wetlands that they have\ncreated and restored up there won\'t really provide any protection to the fisheries or to the\nfolks who might be flooded by storms in the Mobile Bay. That\'s been happening a lot here in\nAlabama. Wetlands are being destroyed by development in the cities and being replaced by\nwetlands in mitigation banks in rural areas. Then, when the flooding hits, the cities get hit\nhard.\nClient: Would my parking deck be affected by flooding?\nLawyer: It\'s hard to tell, but I think that you\'ve got it designed and located so that any impacts\nshould be minimal. Plus, we\'ve got some good insurance lined up for it.\nClient: Well, I don\'t see why I should worry about the fisheries or flooding, then. Besides, how\nmuch of an impact can my project have, anyway? I\'m only filling an acre of swamp for my\nparking deck.\n\n288\n\n\x0cLawyer: Yes, but lots of people are only filling an acre or a couple acres by the bay. Before\nyou know it, half of our wetlands are gone. Which is why I think that there are benefits to\nrestoring or creating wetlands near your property.\nClient: I hired you to represent me and not the citizens of Mobile or the Gulf Coast\nShrimpers Union. All I\'m concerned about is that I get my permit at the lowest cost without\nviolating any laws. If I buy the mitigation credits, that will be legal, and I won\'t be sued by\nanyone when I build my parking deck?\nLawyer: If you buy the mitigation credits, the Corps will issue you the permit and you won\'t\nbe sued by the government as long as you comply with the permit. The government\'s\nregulations actually create a preference for mitigation banking, but they allow on-site\nmitigation when the mitigation would restore an outstanding resource, like it would in your\ncase. The Clean Water Act allows citizens to sue for some violations of the law, but they\nwon\xe2\x80\x99t be able to sue you as long as you have a permit from the Corps to build your parking\ndeck.\nYou may be able to buy some good will with the Mobile community, though, by restoring or\ncreating some wetlands near your property instead of just buying mitigation credits. If you\ndo a good job on the mitigation, it could really make the area around the parking deck look\nnice and it might make folks want to park in your parking deck instead of some of the other\ndecks downtown. It could look like a little nature preserve in the middle of an urban jungle.\nClient: Location is everything with parking decks. If I\'m near where folks need to park, I\'ll\nget folks parking in my garage. If I\'m not, I won\'t. I don\'t think that building some swamps\nnear my garage is going to increase my business. Besides, I\'ve never built swamps. What\nhappens if they don\'t work the way they\'re supposed to? Won\'t the government come after\nme then?\nLawyer: Well, you\'re right that if we go with the on-site mitigation option and the restoration\nor creation doesn\'t work, the Corps can ask you to provide alternative mitigation. You don\'t\nhave to worry about that with the mitigation bank. Once you buy the credits from an\napproved bank and the Corps signs off on that in your permit, you won\'t be responsible for\nproviding any other mitigation if the mitigation bank\'s mitigation doesn\'t work.\nClient: Well, it sounds like a no-brainer, then. Let\'s go with the credits from the mitigation\nbank and get that permit, so that we can start building the garage.\nLawyer: OK. I\'ll contact the Corps this afternoon. I\'ll let you know if anything else comes up.\n\n289\n\n\x0cQuestions\n1. Is it appropriate for the lawyer to raise concerns about the fisheries or flooding, or business\nconcerns (such as the potential increased use of the garage if the area around the garage looks\nlike a nature preserve) in counseling the client? See American Bar Association, Model Rule of\nProfessional Conduct 2.1. (and associated comments); David Dana, Environmental Lawyers\nand the Public Service Model of Lawyering, 74 Or. L. Rev. 57 (1995)\n2. If the lawyer strongly disagreed with the client\xe2\x80\x99s mitigation choice, would it be appropriate for\nthe lawyer to withdraw from representing the client? See American Bar Association, Model Rule\nof Professional Conduct 1.16 (and associated comments)\n\nInterview\nAlexandra Dunn, Executive Director and General Counsel for the\nEnvironmental Council of the States, discusses State wetland mitigation\nprograms, in contrast to the federal program. (YouTube Video)\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 7, why not try a CALI lesson on the material at:\nhttp://cca.li/PY. It should only take about 30 minutes.\n\n290\n\n\x0cChapter 8\nEPA\xe2\x80\x99s Role in Permitting and EPA\xe2\x80\x99s Veto\nAuthority\nI.\n\nEPA\xe2\x80\x99s Role in the Section 404 Permitting Process\n\nAs a result of Congressional compromises, the Clean Water Act vests significant authority\nfor administering and enforcing the Section 404 permit program in the U.S. Army Corps of\nEngineers and the U.S. Environmental Protection Agency. In general, the two agencies\nhave significantly different missions, so it is not surprising that they have adopted\nconflicting positions, at times, in interpreting and administering the Section 404 program.\nWhile the Corps administers the permitting program on a day to day basis and has the\nultimate authority to issue or deny Section 404 permits, Congress gave EPA several\nimportant duties and responsibilities with respect to the program. First, Congress gave\nEPA the authority, in conjunction with the Corps, to write the 404(b)(1) Guidelines, which\nare the rules that the Corps uses to review permit applications when determining whether\nto issue or deny permits and when determining the conditions to include in those permits.\nSee 33 U.S.C. \xc2\xa7 1344(b)(1). The Guidelines were described in detail in Chapters 6 and 7 of\nthis book. Second, EPA provides comments to the Corps of Engineers during the permit\nreview process regarding the agency\xe2\x80\x99s views on the application of the Guidelines to the\npermit application, whether the permit should be issued or denied, and any conditions that\nshould be included in the permit, if issued. EPA\xe2\x80\x99s role in the permitting process was\noutlined in detail in Chapter 6 of this book. Third, while the Corps may have the ultimate\nauthority to issue or deny Section 404 permits, EPA is authorized to veto permits and\nprohibit discharges of dredged or fill material in specific areas regardless of whether the\nCorps determines a discharge is appropriate. See 33 U.S.C. \xc2\xa7 1344(c). Not surprisingly, in\nlight of this authority, the Corps must give significant weight to the comments that EPA\nprovides during the Section 404 permit review process. EPA\xe2\x80\x99s veto authority is discussed in\nthe next section of this Chapter. Fourth, the Clean Water Act authorizes both the Corps,\nsee 33 U.S.C. \xc2\xa7 1344(s), and EPA, see 33 U.S.C. \xc2\xa7 1319, to bring administrative actions\nand to refer judicial actions to the Department of Justice to enforce the Section 404\npermitting program. Those authorities, and the manner in which the agencies have divided\nthose responsibilities, are discussed in Chapter 10 of this book. In addition to the powers\noutlined above, EPA also has authority, with the Corps, to determine whether a site is\nwithin federal jurisdiction as \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d Chapter 4 of this book outlined\nthe manner in which the Corps and EPA have divided that responsibility.\n291\n\n\x0cIn order to facilitate efficient and timely processing of Section 404 permits by the Corps,\nCongress directed EPA and the other agencies routinely involved in review of those permits\nto enter into agreements with the Corps to \xe2\x80\x9cminimize ... duplication, needless paperwork,\nand delays in the issuance of [Section 404] permits.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1344(q). The\nagreement that EPA entered into with the Corps also includes dispute resolution provisions\nto address the inevitable disagreements between the agencies in the permit review\nprocess. The Section 404(q) MOA and dispute resolution processes are discussed in the\nnext section of this Chapter.\nII.\n\nEPA\xe2\x80\x99s Veto Authority\n\nA.\n\nAuthority and Procedures\n\nAlthough Section 404(c) is often referred to as EPA\xe2\x80\x99s \xe2\x80\x9cveto\xe2\x80\x9d authority, that provision grants\nEPA broader authority to limit discharges of dredged of fill material than simply the authority\nto \xe2\x80\x9cveto\xe2\x80\x9d a Section 404 permit. Section 404(c) provides:\nThe Administrator is authorized to prohibit the specification (including the withdrawal\nof specification) of any defined area as a disposal site, and he is authorized to deny\nor restrict the use of any defined area for specification (including the withdrawal of\nspecification) as a disposal site, whenever he determines, after notice and\nopportunity for public hearings, that the discharge of such materials into such area\nwill have an unacceptable adverse effect on municipal water supplies, shellfish beds\nand fishery areas (including spawning and breeding areas), wildlife, or recreational\nareas.\n33 U.S.C. \xc2\xa7 1344(c). Thus, while EPA usually uses its Section 404(c) authority to veto\npermits issued by the Corps, the agency has the authority to prohibit, deny, restrict, or\nwithdraw the specification of an area as a disposal site in a variety of contexts. EPA\nretains that authority even if a State takes over administration of the Section 404 permit\nprogram. See 40 C.F.R. \xc2\xa7 231.1.\n1.\n\nSection 404(q) and Elevation of\nPermit Disputes\n\nResources\nEPA/Corps 404(q) MOA\nEPA 404(q) fact sheet\nChronology of 404(q) elevations\nEPA web page of 404(q) resources\n\nAlthough EPA has only exercised its\nSection 404(c) authority 13 times in the\nhistory of the Section 404 program, see\nU.S. Environmental Protection Agency,\nChronology of 404(c) Actions, it usually\nexercises it to \xe2\x80\x9cveto\xe2\x80\x9d a permit that the Corps is about to issue or has issued. In most cases,\nEPA has raised concerns about the permitted activity during the comment period, before\n292\n\n\x0cthe Corps has decided to issue the permit.\nEPA permit vetoes are rare. In the vast majority of cases, EPA and the Corps work out any\ndisagreements that they have regarding the issuance or denial of a permit, and the\nconditions to be included in a permit, at the field level. However, when disputes arise\nbetween the agencies at the field level, the disputes can be \xe2\x80\x9celevated\xe2\x80\x9d to higher levels\nwithin the agencies for resolution pursuant to a Memorandum of Agreement that EPA and\nthe Corps signed in 1992 to comply with Section 404(q) of the Clean Water Act. See U.S.\nEnvironmental Protection Agency & U.S. Army Corps of Engineers, Memorandum of\nAgreement: Clean Water Act Section 404(q) [hereinafter \xe2\x80\x9c1992 MOA\xe2\x80\x9d].\nUnder the MOA, if EPA is concerned that a project may result in \xe2\x80\x9csubstantial and\nunacceptable impacts to \xe2\x80\x9caquatic resources of national importance\xe2\x80\x9d (ARNI), regional\nrepresentatives of the agency must notify the Corps\xe2\x80\x99 District Engineer about those\nconcerns during the comment period for the permit for the project. Id. \xc2\xb6 IV.3.(a). In\ndetermining whether a site is an ARNI, EPA examines the economic importance of the\nresource, its rarity or uniqueness, and/or the importance of the resource to the protection,\nmaintenance or enhancement of the quality of the nation\xe2\x80\x99s waters. See U.S. Environmental\nProtection Agency, Section 404(q) Dispute Resolution Process. If EPA and the Corps\ncannot work out their differences, the EPA Regional Administrator can send a letter to the\nCorps District Engineer (within 25 days after the comment period ends), indicating that the\nproject will have substantial and unacceptable impacts to an ARNI. See 1992 MOA \xc2\xb6\nIV.3.(b).\nIf the Corps plans to issue the permit for the project regardless of EPA\xe2\x80\x99s concerns, the\nDistrict Engineer must notify the EPA Regional Administrator, and the Regional\nAdministrator can ask EPA headquarters (EPA Assistant Administrator) to request review\n(elevation) of the dispute by the Corps\xe2\x80\x99 headquarters (Assistant Secretary of the Army (Civil\nWorks)). Id. \xc2\xb6 IV.3. Although the Corps will not issue the permit during the elevation review\nprocess, the Assistant Secretary of the Army (Civil Works) can ultimately decide that the\npermit should be issued after reviewing the dispute. Id. The Assistant Secretary might also\ndecide that the permit should not be issued, or that it should be issued with specific\nconditions, and might provide case specific guidance for the agency. Id. When the\nAssistant Secretary makes a decision, the Assistant Secretary should immediately notify\nEPA\xe2\x80\x99s Assistant Administrator. Id. If the Corps determines that it will issue the section 404\npermit regardless of EPA\xe2\x80\x99s concerns, EPA must then decide whether to begin the Section\n404(c) veto process.\nJust as it is unusual for EPA to veto a Corps permit, it is unusual for EPA and the Corps to\nbe unable to resolve their differences regarding a permit application at the regional level.\nWhile the Corps processes approximately 60,000 permits per year, EPA has only sought\nelevation of Corps permits 11 times in the 20 years since the agencies entered into the\nSection 404(q) MOA, and 8 times before they signed the MOA. See U.S. Environmental\n293\n\n\x0cProtection Agency, Section 404(q) Dispute Resolution Process.\nResearch Problems\nEPA posts the permit elevation requests from regional offices to headquarters and the\nsubsequent correspondence between EPA headquarters, the region and the Army on\nits website. Based on the information posted there, please answer the following\nquestions:\n1. How many times, after the EPA and Corps of Engineers entered into the 1992\nMOA to implement Section 404(q), has EPA headquarters declined to pursue the\nrequest of a Regional Office of EPA to elevate a permit dispute? Please identify the\npermits at issue in those cases.\n2. Did the Corps ultimately issue or deny a permit for the Breckenridge Ski Area in\nColorado when EPA\xe2\x80\x99s Assistant Administrator for Water requested review of the\npermit?\n3. According to EPA, how many acres of wetlands would be adversely impacted by\nthe project authorized by the permit for the Florida Power Corporation near Tampa,\nFlorida?\n\n2.\n\nSection 404(c) Procedures\n\nResources\nEPA Section 404(c) regulations\nEPA Section 404(c) fact sheet\nChronology of EPA Section 404(c) actions\n\nSection 404(c) requires EPA, before\nmaking a decision to prohibit, deny,\nrestrict, or withdraw specification of an\narea as a disposal site, to consult with the\nCorps. See 33 U.S.C. \xc2\xa7 1344(c). The\nstatute also requires EPA to \xe2\x80\x9cset forth in\nwriting and make public [the] ... findings and reasons\xe2\x80\x9d for making those decisions. Id. EPA\nhas adopted regulations to implement those requirements. See 40 C.F.R. Part 231. The\nregulations outline a three step process that applies regardless of whether EPA is vetoing a\npermit or prohibiting, denying, restricting, or withdrawing specification of a disposal area in\nother contexts. See 40 C.F.R. \xc2\xa7 231.1. Normally, though, EPA uses its 404 (c) authority\nwhen the agency and the Corps have not been able to work out disagreements regarding a\nSection 404 permit application and the Corps has issued a notice that it intends to issue the\npermit. The elevation process and the 404(c) process are separate processes, and there is\nno requirement that EPA attempt to resolve disagreements with the Corps through formal\nelevation before commencing the 404(c) process.\n294\n\n\x0cSection 404(c) Process\nNotice of Proposed Determination\n\xe2\x86\x93\nRecommended Determination\n\xe2\x86\x93\nFinal Determination\n\nThe Section 404(c) process begins at the regional level of EPA. If a Regional Administrator\nof EPA finds that a discharge of dredged or fill material will have \xe2\x80\x9cunacceptable adverse\neffects\xe2\x80\x9d on municipal water supplies, shellfish beds and fishery areas, wildlife, or\nrecreational areas, the Administrator notifies the Corps that the Administrator intends to\nissue a public notice of a proposed determination to withdraw, prohibit, deny or restrict the\nspecification of the area as a disposal site. See 40 C.F.R. \xc2\xa7231.3(a)(1). If EPA is beginning\nthe process because someone is seeking a permit from the Corps to discharge in the area,\nthe Regional Administrator notifies the permit applicant as well. Id. Unless it is\ndemonstrated to the Regional Administrator that the discharge won\xe2\x80\x99t have unacceptable\nadverse effects, within 15 days after notifying the Corps and any permit applicant that it\nintends to issue a notice, the Administrator publishes, in the Federal Register, a Notice of\nProposed Determination to withdraw, prohibit, deny, or restrict the area as a disposal site.\nId. \xc2\xa7 231.3(a)(2). If EPA begins the process while the Corps is reviewing a permit\napplication for the site, the Corps will not issue the permit until EPA finishes the 404(c)\nprocess. Id. See also 33 C.F.R. \xc2\xa7 323.6(b).\nAfter EPA publishes the notice of proposed determination, the agency provides an\nopportunity for public comment on the notice and may hold a public hearing. See 40 C.F.R.\n\xc2\xa7 231.4. At the end of the comment period, the Regional Administrator either withdraws the\nproposed determination or forwards a Recommended Determination (and administrative\nrecord for the determination) to EPA headquarters (the EPA Assistant Administrator for\nWater). See 40 C.F.R. \xc2\xa7 231.5. Within 30 days after the EPA Assistant Administrator\nreceives the recommended determination, the Assistant Administrator contacts the Corps,\nthe property owner, and the permit applicant (if there is a permit application), so that they\ncan take \xe2\x80\x9ccorrective action\xe2\x80\x9d to prevent unacceptable adverse effects. See 40 C.F.R.\n\xc2\xa7 231.6. Within 60 days after the Assistant Administrator receives the recommended\ndetermination from the Regional Administrator, the Assistant Administrator must issue, and\npublish in the Federal Register, a Final Determination affirming, modifying, or rescinding\nthe recommended determination. Id.\n\n295\n\n\x0cQuestions and Comments\n1.\n\nJudicial Review: Which of the following actions are reviewable final agency\nactions?: (1) a Regional Administrator\xe2\x80\x99s Proposed Determination; (2) a Regional\nAdministrator\xe2\x80\x99s Withdrawal of a Proposed Determination; (3) a Regional\nAdministrator\xe2\x80\x99s Recommended Determination; (4) a Final Determination of the\nAssistant Administrator. See 40 C.F.R. part 231. What if EPA never initiates the\n404(c) process at all? Is the agency\xe2\x80\x99s failure to veto a permit or failure to initiate the\n404(c) process with respect to a disposal site reviewable? Compare Preserve\nEndangered Areas of Cobb\xe2\x80\x99s History, Inc. v. U.S. Army Corps of Engineers, 87 F.3d\n1242 (11th Cr. 1996) (EPA\xe2\x80\x99s decision whether to exercise its 404 (c) authority is\ndiscretionary and can\xe2\x80\x99t be challenged in a citizen suit) with National Wildlife\nFederation v. Hanson, 859 F.2d 313 (4th Cir. 1988) (EPA has a non-discretionary\nduty to exercise its 404(c) authority when the Corps has made an erroneous wetland\ndetermination) and Alliance to Save Mattaponi v. United States Army Corps of\nEngineers, 515 F. Supp. 2d 1 (D.D.C. 2007) (EPA\xe2\x80\x99s failure to exercise its 404(c)\nauthority cannot be challenged in a citizen suit, but can be challenged under the\nAdministrative Procedures Act).\n\n2.\n\nNature of hearings: Section 404(c) requires EPA to make determinations \xe2\x80\x9cafter\nnotice and opportunity for public hearings.\xe2\x80\x9d Does that language require the agency\nto hold formal trial-type hearings before an administrative law judge? How has the\nagency interpreted the language? See 40 C.F.R. \xc2\xa7 231.4. How does that impact the\nstandard of review that applies to the factual determinations made by EPA in a final\ndetermination under section 404 (c)? See James City County v. Environmental\nProtection Agency, 12 F.3d 1330 (4th Cir. 1993) (relying on the arbitrary and\ncapricious standard after previously applying the substantial evidence standard).\n\n3.\n\nFrequency: EPA exercises its 404(c) authority sparingly. It has only issued 13\nvetoes since 1972, and did not issue any veto decisions over an 18 year period\nbetween 1990 and 2008. See U.S. Environmental Protection Agency, Chronology of\n404(c) Actions. While EPA vetoed 11 projects between 1981 and 1990, the decline\nin permit vetoes was likely influenced by two factors. First, several bills were\nintroduced in Congress in the early 1990s that would have eliminated EPA\xe2\x80\x99s Section\n404(c) authority. See, e.g., Wetlands Regulatory Reform Act of 1995, 104th Cong.,\n1st Sess. (1995); Wetlands Protection and Regulatory Reform Act of 1991, H.R. 404,\n102d Cong., 1st Sess (1991). Second, and perhaps more importantly, in 1992, EPA\nentered into the MOA with the Corps establishing the elevation procedures, which\nprovide a process to resolve inter-agency disputes which might otherwise lead to\npermit vetoes. See 1992 MOA.\n\n296\n\n\x0cResearch Problems\nEPA posts the proposed and final determinations in the 404(c) process on its website.\nBased on the information posted there, please answer the following questions:\n1. When EPA vetoed the Lake Alma Impoundment permit in Georgia, was it\nconcerned about the impacts of the project on (a) municipal water supplies; (b)\nrecreational areas; or (c) wildlife?\n2. When EPA vetoed the Two Forks Water Supply Impoundments permit in Colorado,\nwas it concerned about the impacts of the project on (a) fisheries; (b) municipal water\nsupplies; or (c) wildlife?\n3. In how many 404(c) proceedings has EPA modified a final determination after the\nagency issued a determination? Please identify the proceedings.\n\nB.\n\nTiming of the \xe2\x80\x9cVeto\xe2\x80\x9d\n\nAs noted above, while EPA normally uses its authority under Section 404(c) to veto a\npermit that the Corps plans to issue or has already issued, the statutory language does\nnot limit EPA\xe2\x80\x99s exercise of authority to those situations. The statute does not refer to a\n\xe2\x80\x9cveto\xe2\x80\x9d at all. Instead, it authorizes EPA to prohibit, deny, restrict or withdraw the\nspecification of a defined area as a disposal site. See 33 U.S.C. \xc2\xa7 1344(c). EPA has\ninterpreted that language, through regulation, to mean that the agency can exercise its\nauthority before anyone applies for a permit, while the Corps is processing a permit\napplication, and after the Corps issues a permit. See U.S. Environmental Protection\nAgency, Clean Water Act Section 404 (c) \xe2\x80\x9cVeto Authority\xe2\x80\x9d. Below are EPA\xe2\x80\x99s regulatory\ndefinitions that support that broad exercise of authority.\n\n297\n\n\x0cStatutory Term\n\nRegulatory Definition\n\nProhibit Specification\n\nPrevent the designation of an area as a present or\nfuture disposal site - 40 C.F.R. \xc2\xa7 231.2(b).\n\nDeny or Restrict the Use\nof Any Defined Area for\nSpecification\n\nDeny or restrict the use of any area for the present or\nfuture discharge of any dredged or fill material - 40\nC.F.R. \xc2\xa7 231.2(c).\n\nWithdraw Specification\n\nRemove from designation an area already specified as\na disposal site by the U.S. Army Corps of Engineers or\nby a state which has assumed the Section 404\nprogram, or any portion of such area - 40 C.F.R.\n\xc2\xa7 231.2(a).\n\nWhile the agency\xe2\x80\x99s regulations authorize EPA to exercise its Section 404(c) powers in a\nbroad range of situations, in most cases, EPA exercises its authority when the Corps is\nreviewing a Section 404 permit application and is likely to issue the permit, but has not\nyet issued the permit. 10 of the 13 EPA \xe2\x80\x9cvetoes\xe2\x80\x9d arose in that context. See Brief for the\nRespondent in Opposition to Petition for Writ of Certiorari at 14, Mingo Logan Coal\nCompany v. Environmental Protection Agency, No. 13-599 (U.S. Feb. 14, 2014). In the\nother 3 cases, EPA acted to limit the use of an area as a disposal site after the Corps had\nissued a permit authorizing the discharge. Id. at 5. In 2 of those cases, EPA acted shortly\nafter the permit was issued or when a permit modification was being sought. Id. In one\ncase, however, EPA exercised its Section 404(c) authority four years after the Corps\nissued a Section 404 permit for a mountaintop removal mining project. That was EPA\xe2\x80\x99s\nmost recent exercise of its authority and was challenged in the following case.\nMingo Logan Coal Company v.\nU.S. Environmental Protection\nAgency\n714 F.3d 608 (D.C. Cir. 2013)\ncert. denied 134 S. Ct. 1540 (2014)\nKAREN LECRAFT HENDERSON,\nCircuit Judge:\n\nResources for the Case\nUnedited opinion (From court\xe2\x80\x99s website)\nGoogle Map of all the cases inthe coursebook\nD.C. Circuit Oral Argument Audio\nEPA letter initiating 404(c) process\nArch Coal Company website\n\nThe Mingo Logan Coal Company\n(Mingo Logan) applied to the United\nStates Army Corps of Engineers (Corps) for a permit under section 404 of the Clean Water\nAct (CWA), 33 U.S.C. \xc2\xa7 1344, to discharge dredged or fill material from a mountain-top coal\nmine in West Virginia into three streams and their tributaries. The Corps\xe2\x80\x94acting on behalf\n298\n\n\x0cof the Secretary of the Army (Secretary) and without objection from the Administrator of the\nUnited States Environmental Protection Agency (Administrator, EPA), who has \xe2\x80\x9cveto\xe2\x80\x9d\nauthority over discharge site selection under CWA subsection 404(c), * * * issued the\npermit to Mingo Logan, approving the requested disposal sites for the discharged material.\nFour years later, EPA invoked its subsection 404(c) authority to \xe2\x80\x9cwithdraw\xe2\x80\x9d the\nspecifications of two of the streams as disposal sites, thereby prohibiting Mingo Logan from\ndischarging into them. Mingo Logan filed this action challenging EPA\xe2\x80\x99s withdrawal of the\nspecified sites on the grounds that (1) EPA lacks statutory authority to withdraw site\nspecification after a permit has issued and (2) EPA\xe2\x80\x99s decision to do so was arbitrary and\ncapricious in violation of the Administrative Procedure Act (APA), 5 U.S.C. \xc2\xa7\xc2\xa7 701 et seq.\nThe district court granted summary judgment to Mingo Logan on the first ground without\nreaching the second. We reverse the district court, concluding that EPA has post-permit\nwithdrawal authority, and remand for further proceedings.\nI.\nThe CWA provides that \xe2\x80\x9cthe discharge of any pollutant by any person shall be unlawful\xe2\x80\x9d\nexcept as in compliance with specifically enumerated CWA provisions, including section\n404. * * * Subsection 404(a) authorizes the Secretary to issue permits allowing discharge of\ndredged or fill material \xe2\x80\x9cat specified disposal sites,\xe2\x80\x9d which are to be \xe2\x80\x9cspecified for each such\npermit by the Secretary . . . through the application of guidelines developed by the\nAdministrator, in conjunction with the Secretary.\xe2\x80\x9d * * * The Secretary\xe2\x80\x99s authority to specify a\ndisposal site is expressly made \xe2\x80\x9c[s]ubject to subsection (c) of [section 404].\xe2\x80\x9d * * *\nSubsection 404(c) authorizes the Administrator, after consultation with the Corps, to veto\nthe Corps\xe2\x80\x99s disposal site specification\xe2\x80\x94that is, the Administrator \xe2\x80\x9cis authorized to prohibit\nthe specification (including the withdrawal of specification) of any defined area as a\ndisposal site, and . . . to deny or restrict the use of any defined area for specification\n(including the withdrawal of specification) as a disposal site\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9cwhenever he determines\xe2\x80\x9d\nthe discharge will have an \xe2\x80\x9cunacceptable adverse effect\xe2\x80\x9d on identified environmental\nresources. * * *\nIn June 1999, Hobet Mining, Inc., Mingo Logan\xe2\x80\x99s predecessor, applied for a section 404\npermit to discharge material from the Spruce No. 1 Mine into four West Virginia streams\nand their tributaries. In 2002, after the Corps prepared a draft Environmental Impact\nStatement, EPA expressed its concern that \xe2\x80\x9ceven with the best practices, mountaintop\nmining yields significant and unavoidable environmental impacts that had not been\nadequately described in the document.\xe2\x80\x9d * * * In the end, however, EPA declined to pursue a\nsubsection 404(c) objection. * * * On January 22, 2007, the Corps issued Mingo Logan a\nsection 404 permit, effective through December 31, 2031, which authorized Mingo Logan to\ndispose of material into three streams\xe2\x80\x94Pigeonroost Branch, Oldhouse Branch and Seng\nCamp Creek\xe2\x80\x94and certain tributaries thereto. * * * The permit expressly advised that the\nCorps \xe2\x80\x9cmay reevaluate its decision on the permit at any time the circumstances warrant\xe2\x80\x9d\nand that \xe2\x80\x9c[s]uch a reevaluation may result in a determination that it is appropriate to use the\n299\n\n\x0csuspension, modification, and revocation procedures contained in 33 C.F.R. 325.7.\xe2\x80\x9d * * *\nThe permit made no mention of any future EPA action.\nOn September 3, 2009, EPA wrote the Corps requesting it \xe2\x80\x9cuse its discretionary authority\nprovided by 33 C.F.R. 325.7 to suspend, revoke or modify the permit issued authorizing\nMingo Logan Coal Company to discharge dredged and/or fill material into waters of the\nUnited States in conjunction with the construction, operation, and reclamation of the Spruce\nFork No. 1 Surface Mine,\xe2\x80\x9d based on \xe2\x80\x9cnew information and circumstances . . . which\njustif[ied] reconsideration of the permit.\xe2\x80\x9d * * * EPA noted in particular its \xe2\x80\x9cconcern[] about\nthe project\xe2\x80\x99s potential to degrade downstream water quality.\xe2\x80\x9d * * * The Corps responded\nthat there were \xe2\x80\x9cno factors that currently compell[ed it] to consider permit suspension,\nmodification or revocation.\xe2\x80\x9d * * * EPA wrote back: \xe2\x80\x9cWe intend to issue a public notice of a\nproposed determination to restrict or prohibit the discharge of dredged and/or fill material at\nthe Spruce No. 1 Mine project site consistent with our authority under Section 404(c) of the\nClean Water Act and our regulations at 40 C.F.R. Part 231.\xe2\x80\x9d * * *\nEPA\xe2\x80\x99s Regional Director published the promised notice of proposed determination on April\n2, 2010, requesting public comments \xe2\x80\x9c[p]ursuant to Section 404(c) . . . on its proposal to\nwithdraw or restrict use of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and\ncertain tributaries to those waters in Logan County, West Virginia to receive dredged and/or\nfill material in connection with construction of the Spruce No. 1 Surface Mine.\xe2\x80\x9d * * * The\nRegional Director followed up with a Recommended Determination on September 24,\n2010, limited to withdrawal of the specification of Pigeonroost Branch and Oldhouse Branch\nand their tributaries. On January 13, 2011, EPA published its Final Determination, which,\nadopting the Regional Director\xe2\x80\x99s recommendation, formally \xe2\x80\x9cwithdraws the specification of\nPigeonroost Branch, Oldhouse Branch, and their tributaries, as described in [the Spruce\nMine Permit] . . . as a disposal site for the discharge of dredged or fill material for the\npurpose of construction, operation, and reclamation of the Spruce No. 1 Surface Mine\xe2\x80\x9d and\n\xe2\x80\x9cprohibits the specification of the defined area . . . for use as a disposal site associated with\nfuture surface coal mining that would be expected to result in a nature and scale of adverse\nchemical, physical, and biological effects similar to the Spruce No. 1 mine.\xe2\x80\x9d * * *\nMingo Logan filed this action in district court immediately following the Proposed\nDetermination, challenging EPA\xe2\x80\x99s authority to \xe2\x80\x9crevoke\xe2\x80\x9d the three-year-old permit, * * * and\namended its complaint in February 2011 to challenge the Final Determination, asserting it\nis both ultra vires and arbitrary and capricious. * * * On cross-motions for summary\njudgment, the district court granted judgment to Mingo Logan on March 23, 2012. * * * The\ncourt concluded EPA \xe2\x80\x9cexceeded its authority under section 404(c) of the Clean Water Act\nwhen it attempted to invalidate an existing permit by withdrawing the specification of certain\nareas as disposal sites after a permit had been issued by the Corps under section 404(a).\xe2\x80\x9d\n* * * The United States filed a timely notice of appeal on behalf of EPA. The Corps joined\nEPA on brief. * * *\n\n300\n\n\x0cII.\nIn granting summary judgment, the district court agreed with Mingo Logan\xe2\x80\x99s interpretation\nof subsection 404 to preclude EPA from withdrawing a site specification once the Corps\nhas issued a permit. \xe2\x80\x9cWe review a grant of summary judgment de novo applying the same\nstandards as those that govern the district court\xe2\x80\x99s determination.\xe2\x80\x9d Troy Corp. v. Browner,\n120 F.3d 277, 283 (D.C. Cir. 1997). \xe2\x80\x9cMoreover, insofar as the agency\xe2\x80\x99s determination\namounts to or involves its interpretation of . . . a statute entrusted to its administration, we\nreview that interpretation under the deferential standard of Chevron U.S.A. Inc. v. Natural\nResources Defense Council, Inc., 467 U.S. 837 (1984).\xe2\x80\x9d Id. Under Chevron:\nWe first ask \xe2\x80\x9cwhether Congress has directly spoken to the precise question at\nissue,\xe2\x80\x9d in which case we \xe2\x80\x9cmust give effect to the unambiguously expressed intent of\nCongress.\xe2\x80\x9d If the \xe2\x80\x9cstatute is silent or ambiguous with respect to the specific issue,\xe2\x80\x9d\nhowever, we move to the second step and defer to the agency\xe2\x80\x99s interpretation as\nlong as it is \xe2\x80\x9cbased on a permissible construction of the statute.\xe2\x80\x9d\nNatural Res. Def. Council v. EPA, 706 F.3d 428, 431 (D.C. Cir. 2013) (quoting Chevron,\n467 U.S. at 842\xe2\x80\x9343). We construe subsection 404(c) under Chevron step 1 because we\nbelieve the language unambiguously expresses the intent of the Congress.\nAs noted earlier, * * * section 404 vests the Corps, rather than EPA, with the authority to\nissue permits to discharge fill and dredged material into navigable waters and to specify the\ndisposal sites therefor. * * * Nonetheless, the Congress granted EPA a broad\nenvironmental \xe2\x80\x9cbackstop\xe2\x80\x9d authority over the Secretary\xe2\x80\x99s discharge site selection in\nsubsection 404(c), which provides in full:\n(c) Denial or restriction of use of defined areas as disposal sites\nThe Administrator is authorized to prohibit the specification (including the withdrawal\nof specification) of any defined area as a disposal site, and he is authorized to deny\nor restrict the use of any defined area for specification (including the withdrawal of\nspecification) as a disposal site, whenever he determines, after notice and\nopportunity for public hearings, that the discharge of such materials into such area\nwill have an unacceptable adverse effect on municipal water supplies, shellfish beds\nand fishery areas (including spawning and breeding areas), wildlife, or recreational\nareas. Before making such determination, the Administrator shall consult with the\nSecretary. The Administrator shall set forth in writing and make public his findings\nand his reasons for making any determination under this subsection.\n33 U.S.C. \xc2\xa7 1344(c); see Legislative History at 177 (\xe2\x80\x9c[T]he Conferees agreed that the\nAdministrator . . . should have the veto over the selection of the site for dredged spoil\n\n301\n\n\x0cdisposal and over any specific spoil to be disposed of in any selected site.\xe2\x80\x9d). 2 Section 404\nimposes no temporal limit on the Administrator\xe2\x80\x99s authority to withdraw the Corps\xe2\x80\x99s\nspecification but instead expressly empowers him to prohibit, restrict or withdraw the\nspecification \xe2\x80\x9cwhenever\xe2\x80\x9d he makes a determination that the statutory \xe2\x80\x9cunacceptable\nadverse effect\xe2\x80\x9d will result. 33 U.S.C. \xc2\xa7 1344(c) (emphasis added). Using the expansive\nconjunction \xe2\x80\x9cwhenever,\xe2\x80\x9d the Congress made plain its intent to grant the Administrator\nauthority to prohibit/deny/restrict/withdraw a specification at any time. See 20 Oxford\nEnglish Dictionary 210 (2d ed.1989) (defining \xe2\x80\x9cwhenever,\xe2\x80\x9d used in \xe2\x80\x9ca qualifying (conditional)\nclause,\xe2\x80\x9d as: \xe2\x80\x9cAt whatever time, no matter when.\xe2\x80\x9d). Thus, the unambiguous language of\nsubsection 404(c) manifests the Congress\xe2\x80\x99s intent to confer on EPA a broad veto power\nextending beyond the permit issuance.3\n2\n\nThus, subsection 404(c) affords EPA two distinct (if overlapping) powers to veto the\nCorps\xe2\x80\x99s specification: EPA may (1) \xe2\x80\x9cprohibit the specification (including the withdrawal of\nspecification) of any defined area as a disposal site\xe2\x80\x9d or (2) \xe2\x80\x9cdeny or restrict the use of any\ndefined area for specification (including the withdrawal of specification).\xe2\x80\x9d In withdrawing the\nspecifications here, EPA did not clearly distinguish between the two powers. See Final\nDetermination, 76 Fed. Reg. at 3127 (\xe2\x80\x9cEPA Region III published in the Federal Register a\nProposed Determination to prohibit, restrict, or deny the specification or the use for\nspecification (including withdrawal of specification) of certain waters at the project site as\ndisposal sites for the discharge of dredged or fill material for the construction of the Spruce\nNo. 1 Surface Mine.\xe2\x80\x9d). It appears, however, that EPA exercised the first authority\xe2\x80\x94\xe2\x80\x9cto\nprohibit\xe2\x80\x9d/\xe2\x80\x9cwithdraw[]\xe2\x80\x9d\xe2\x80\x94given the post-permit timing. See id. at 3128 (\xe2\x80\x9cEPA\xe2\x80\x99s Final\nDetermination withdraws the specification of Pigeonroost Branch, Oldhouse Branch, and\ntheir tributaries, as described in DA Permit No. 199800436-3 (Section 10: Coal River), as a\ndisposal site for the discharge of dredged or fill material for the purpose of construction,\noperation, and reclamation of the Spruce No. 1 Surface Mine. This Final Determination also\nprohibits the specification of the defined area constituting Pigeonroost Branch, Oldhouse\nBranch, and their tributaries for use as a disposal site associated with future surface coal\nmining that would be expected to result in a nature and scale of adverse chemical,\nphysical, and biological effects similar to the Spruce No. 1 mine.\xe2\x80\x9d).\n3\n\nBased on the plain meaning of the statutory language, EPA has consistently maintained\nthis interpretation for over thirty years. See Section 404(c) Procedures, 44 Fed. Reg.\n58,076, 58,077 (Oct. 9, 1979) (\xe2\x80\x9cThe statute on its face clearly allows EPA to act after the\nCorps has issued a permit; it refers twice to the \xe2\x80\x98withdrawal of specification,\xe2\x80\x99 which clearly\nrefers to action by EPA after the Corps has specified a site (e.g. issued a permit or\nauthorized its own work).\xe2\x80\x9d); Final Determination of the Administrator Concerning the North\nMiami Landfill Site Pursuant to Section 404(c) of the Clean Water Act at 1-2 (Jan. 26, 1981)\n(JA 239-40) (exercising 404(c) authority \xe2\x80\x9cto restrict the use of [of the North Miami Landfill]\nfor specification (including the withdrawal of specification) as a disposal site\xe2\x80\x9d almost five\nyears after Corps issued permit therefor). The Corps has made clear by joining EPA in this\nlitigation that it agrees with EPA\xe2\x80\x99s interpretation. See supra * * * .\n302\n\n\x0cThis construction is further buttressed by subsection 404(c)\xe2\x80\x99s authorization of a \xe2\x80\x9cwithdrawal\xe2\x80\x9d\nwhich, as EPA notes, is \xe2\x80\x9ca term of retrospective application.\xe2\x80\x9d * * * EPA can withdraw a\nspecification only after it has been made. See 20 Oxford English Dictionary 449 (2d\ned.1989) (defining \xe2\x80\x9cwithdraw\xe2\x80\x9d as \xe2\x80\x9c[t]o take back or away (something that has been given,\ngranted, allowed, possessed, enjoyed, or experienced)\xe2\x80\x9d). Moreover, because the Corps\noften specifies final disposal sites in the permit itself\xe2\x80\x94at least it did here, * * * \xe2\x80\x94EPA\xe2\x80\x99s\npower to withdraw can only be exercised post-permit. Mingo Logan\xe2\x80\x99s reading of the statute\nwould eliminate EPA\xe2\x80\x99s express statutory right to withdraw a specification and thereby\nrender subsection 404(c)\xe2\x80\x99s parenthetical \xe2\x80\x9cwithdrawal\xe2\x80\x9d language superfluous\xe2\x80\x94a result to be\navoided. See Corley v. United States, 556 U.S. 303, 314 (2009) (applying \xe2\x80\x9cone of the most\nbasic interpretative canons, that a statute should be construed so that effect is given to all\nits provisions, so that no part will be inoperative or superfluous, void or insignificant\xe2\x80\x9d)\n(brackets and quotation marks omitted).\nNotwithstanding the unambiguous statutory language, Mingo Logan presses its own view of\nthe language, the statutory structure and section 404\xe2\x80\x99s legislative history to maintain that\nthe Congress intended to preclude post-permit withdrawal. We find none of its arguments\npersuasive.\nFirst, Mingo Logan argues that the statutory language itself contemplates that specification\noccurs before (rather than when) the permit issues and therefore can (and must) be\nwithdrawn pre-permit. We find no such intent in the statutory directive Mingo Logan\nquotes\xe2\x80\x94that \xe2\x80\x9ceach such disposal site shall be specified for each such permit by the\nSecretary . . . through the application of guidelines developed by the Administrator, in\nconjunction with the Secretary.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(b). This language is at least as\nconsistent with specification by the Corps at the time the permit issues as it is with prepermit specification. Moreover, as noted earlier, * * * the Corps expressly \xe2\x80\x9cspecified\xe2\x80\x9d the\nfinal sites in the Spruce Mine Permit itself. Nor does the permitting process\xe2\x80\x94including the\n\xe2\x80\x9cextensive coordination process during which EPA can review the Corps\xe2\x80\x99s statement of\nfindings/record of decision,\xe2\x80\x9d * * * require that the specification be made before the permit\nissues. During the permitting process, the disposal sites are proposed, reviewed\xe2\x80\x94perhaps\neven \xe2\x80\x9cspecified,\xe2\x80\x9d as Mingo Logan contends\xe2\x80\x94but the final specifications are included in the\npermit itself.\nSecond, Mingo Logan asserts EPA\xe2\x80\x99s interpretation conflicts with section 404 \xe2\x80\x9cas a whole.\xe2\x80\x9d\n* * * Mingo Logan claims, for example, that \xe2\x80\x9cEPA\xe2\x80\x99s reading obliterates the choice Congress\nmade to give the permitting authority with all of its attributes to the Corps, not EPA.\xe2\x80\x9d * * *\nWhile it is true that subsections 404(a)-(b) unambiguously authorize the Secretary to issue\na discharge permit\xe2\x80\x94and to specify the disposal site(s) therefor\xe2\x80\x94section 404(b) makes\nequally clear * * * that the Administrator has, in effect, the final say on the specified disposal\nsites \xe2\x80\x9cwhenever\xe2\x80\x9d he makes the statutorily required \xe2\x80\x9cunacceptable adverse effect\xe2\x80\x9d\ndetermination. Thus, insofar as site specification may be considered, as Mingo Logan\nasserts, an \xe2\x80\x9cattribute[]\xe2\x80\x9d of the permitting authority, the statute expressly vests final authority\n303\n\n\x0cover this particular attribute in the Administrator.\nMingo Logan also contends that EPA\xe2\x80\x99s interpretation \xe2\x80\x9ctramples on provisions like sections\n404(p) and 404(q) that are intended to give permits certainty and finality.\xe2\x80\x9d * * * Subsection\n404(p) provides: \xe2\x80\x9cCompliance with a permit issued pursuant to [section 404], including any\nactivity carried out pursuant to a general permit issued under this section, shall be deemed\ncompliance, for purposes of [enforcement actions brought under] sections 1319 and 1365\nof [title 33] . . . .\xe2\x80\x9d4 According to Mingo Logan, \xe2\x80\x9cabsent . . . permit violations or public interest\nconsiderations, the permittee can rely on the permit shield of section 404(p).\xe2\x80\x9d * * * But\nagain, section 404(c)\xe2\x80\x99s language is plain with regard to its enumerated \xe2\x80\x9cunacceptable\nadverse effects\xe2\x80\x9d: the Administrator retains authority to withdraw a specified disposal site\n\xe2\x80\x9cwhenever\xe2\x80\x9d he determines such effects will result from discharges at the sites. And when he\nwithdraws a disposal site specification, as he did here, the disposal site\xe2\x80\x99s \xe2\x80\x9cterms and\nconditions specified\xe2\x80\x9d in the permit * * * are in effect amended so that discharges at the\npreviously specified disposal sites are no longer in \xe2\x80\x9c[c]ompliance with\xe2\x80\x9d the permit\xe2\x80\x94although\nthe permit itself remains otherwise in effect to the extent it is usable. 5 Moreover, as EPA\nnotes, subsection 404(c) was enacted in 1972 and its plain meaning did not change when\n404(p) was enacted five years later. * * * As Mingo Logan acknowledges, if \xe2\x80\x9cthe text of\nsection 404(c) clearly and unambiguously gave EPA the power to act post-permit\xe2\x80\x9d\xe2\x80\x94a\nreading it rejects\xe2\x80\x94then section 404(p) \xe2\x80\x9ccannot be read to implicitly overturn section 404(c).\xe2\x80\x9d\n* * * As we have repeatedly stated throughout this opinion, the text of section 404(c) does\nindeed clearly and unambiguously give EPA the power to act post-permit. Thus, subsection\n404(p) does not implicitly limit section 404(c)\xe2\x80\x99s scope. Nor does EPA\xe2\x80\x99s express statutory\nauthority to act post-permit interfere with subsection 404(q)\xe2\x80\x99s directive that the Secretary\nenter into agreements with other agency heads \xe2\x80\x9cto minimize, to the maximum extent\npracticable, duplication, needless paperwork, and delays in the issuance of permits under\n4\n\nSections 1319 and 1365 of title 33 authorize an action by, respectively, (1) EPA against a\nviolator of, inter alia, the terms of a section 404 permit; and (2) a citizen against a violator of\na CWA effluent limitation or against EPA for failure to perform a non-discretionary \xe2\x80\x9cact or\nduty\xe2\x80\x9d under the CWA. 33 U.S.C. \xc2\xa7\xc2\xa7 1319, 1365.\n5\n\nIn this case for example, EPA left intact the specification as disposal site of \xe2\x80\x9cthe Right\nFork of Seng Camp Creek and its tributaries . . . in part because some of those discharges\nhave already occurred and because the stream resources in Right Fork of Seng Camp\nCreek were subject to a higher level of historic and ongoing human disturbance than those\nfound in Pigeonroost Branch or Oldhouse Branch.\xe2\x80\x9d Final Determination, 76 Fed. Reg. at\n3127 n.1.\nIn addition, EPA has made clear that a permittee may not be penalized for discharges that\noccurred in compliance with the permit before the effective date of the withdrawal of the\nspecification.\n304\n\n\x0cthis section\xe2\x80\x9d and \xe2\x80\x9cto assure that, to the maximum extent practicable, a decision with respect\nto an application for a permit under subsection (a) of this section will be made not later than\nthe ninetieth day after the date the notice for such application is published under subsection\n(a) of this section.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 1344(q) (emphases added). The enumerated obligations\napply only pre-permit and are therefore unaffected by EPA\xe2\x80\x99s post-permit actions.\nFinally, Mingo Logan argues that the legislative history \xe2\x80\x9cconfirms that Congress intended\nEPA to act under section 404(c), if at all, prior to permit issuance.\xe2\x80\x9d * * * In particular, it relies\non the statement of then-Senator Edmund Muskie that\nprior to the issuance of any permit to dispose of spoil, the Administrator must\ndetermine that the material to be disposed of will not adversely affect municipal\nwater supplies, shellfish beds, and fishery areas (including spawning and breeding\nareas), wildlife or recreational areas in the specified site. Should the Administrator\nso determine, no permit may issue.\n118 Cong. Rec. at 33,699, reprinted in Legislative History at 177 (emphasis added).\n\xe2\x80\x9cAssuming legislative history could override the plain, unambiguous directive\xe2\x80\x9d of section\n404(c) and \xe2\x80\x9cputting to one side the fact that this was the statement of a single member of\nCongress,\xe2\x80\x9d the quoted language is \xe2\x80\x9cnot necessarily inconsistent with\xe2\x80\x9d EPA\xe2\x80\x99s interpretation.\nSee Natural Res. Def. Council v. EPA, 706 F.3d 428, 437 (D.C. Cir. 2013) (quotation marks\nand brackets omitted); see also Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 752 (2012)\n(\xe2\x80\x9c[T]he views of a single legislator, even a bill\xe2\x80\x99s sponsor, are not controlling.\xe2\x80\x9d). That EPA\nshould review the preliminary specifications pre-permit to determine whether discharges will\nhave the required \xe2\x80\x9cunacceptable adverse effect\xe2\x80\x9d\xe2\x80\x94as EPA in fact did here\xe2\x80\x94does not mean\nit is foreclosed from doing so post-permit as well\xe2\x80\x94as it also did here.6 \xe2\x80\x9cThus, \xe2\x80\x98this case\ndoes not present the very rare situation where the legislative history of a statute is more\nprobative of congressional intent than the plain text.\xe2\x80\x99 \xe2\x80\x9d Va. Dep\xe2\x80\x99t of Med. Assistance Servs.\nv. U.S. Dep\xe2\x80\x99t of Health & Human Servs., 678 F.3d 918, 923 (D.C. Cir. 2012) (quoting\nConsumer Elecs. Ass\xe2\x80\x99n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003)) (brackets omitted).\nFor the foregoing reasons, we reverse the district court insofar as it held that EPA lacks\nstatutory authority under CWA section 404(c) to withdraw a disposal site specification postpermit. Because the district court did not address the merits of Mingo Logan\xe2\x80\x99s APA\nchallenge to the Final Determination and resolution of the issue is not clear on the present\n6\n\nSimilarly, post-permit withdrawal is not precluded by 33 C.F.R. \xc2\xa7 323.6(b) (\xe2\x80\x9cThe Corps will\nnot issue a permit where the regional administrator of EPA has notified the district engineer\nand applicant in writing pursuant to 40 C.F.R. 231.3(a)(1) that he intends to issue a public\nnotice of a proposed determination to prohibit or withdraw the specification, or to deny,\nrestrict or withdraw the use for specification, of any defined area as a disposal site in\naccordance with section 404(c) of the Clean Water Act.\xe2\x80\x9d).\n305\n\n\x0crecord, we follow our usual practice and remand the issue to the district court to address in\nthe first instance. See Friends of Blackwater v. Salazar, 691 F.3d 428, 434 n.* (D.C. Cir.\n2012) (citing Piersall v. Winter, 435 F.3d 319, 325 (D.C. Cir. 2006)).\nQuestions and comments\n1.\n\nDeference: The Corps and EPA both play a role in administering the Section 404\npermit program. If EPA and the Corps disagree about the interpretation of Section\n404(c), which agency\xe2\x80\x99s interpretation is entitled to deference? Did the court have to\nresolve that issue in this case?\n\n2.\n\nConsistent interpretation: Why is it significant that EPA interpreted its authority\nunder Section 404(c) consistently over thirty years? Is there evidence that Congress\nwas aware of that interpretation? Is that relevant?\n\n3.\n\nOn a cert petition to the Supreme Court, Mingo Logan argued that the appellate\ncourt\xe2\x80\x99s decision would chill investment in development because it calls into question\nthe finality of Corps\xe2\x80\x99 permits. However, is there another way that the government\ncould have prevented the Mingo Logan Coal Company from continuing to discharge\nfill material besides EPA\xe2\x80\x99s exercise of its 404(c) authority? How \xe2\x80\x9cfinal\xe2\x80\x9d are the Corps\xe2\x80\x99\npermits?\n\n4.\n\nA familiar statutory interpretation canon provides that when two statutes conflict, the\nstatute enacted last prevails. Another canon provides that repeals by implication are\ndisfavored. Yet another canon provides that when two statutes conflict, the specific\ncontrols over the general. Were any of those canons relevant to Mingo Logan\xe2\x80\x99s\nargument that Section 404(p) demonstrated Congress\xe2\x80\x99 intent that EPA should not\nhave the authority to veto a permit after the Corps has issued it?\n\n5.\n\nProjects vetoed: The project in the Mingo Logan case would have been the largest\nsurface coal mine in West Virginia. However, many of the cases where EPA has\nexercised its 404(c) authority involve infrastructure development projects, such as\ndams, water supply impoundments, flood control projects and landfills or recycling\nplants. See U.S. Environmental Protection Agency, Clean Water Act Section 404 (c)\n\xe2\x80\x9cVeto Authority\xe2\x80\x9d. Consequently, when Mingo Logan file a petition for writ of certiorari\nto the Supreme Court seeking review of the D.C. Circuit\xe2\x80\x99s decision, amicus briefs\nwere filed by 27 States and the U.S. Conference of Mayors, as well as the National\nMining Association, National Association of Home Builders, American Petroleum\nInstitute, and the Chamber of Commerce. See SCOTUSblog, Mingo Logan Coal\nCompany v. Environmental Protection Agency. The Court denied the petition on\nMarch 24, 2014.\n\n6.\n\nRemand: On remand, the District Court of the District of Columbia held that EPA\xe2\x80\x99s\n306\n\n\x0cdecision to exercise its 404(c) authority \xe2\x80\x9cwas reasonable, supported by the record,\nand based on considerations within the agency\xe2\x80\x99s purview.\xe2\x80\x9d See Mingo Logan Coal\nCompany, Inc. v. U.S. Environmental Protection Agency, Case No. 10-0541 (D.D.C.\n2014).\n7.\n\nPre-emptive vetoes: Although EPA\xe2\x80\x99s regulations authorize the agency to prohibit\nthe specification of an area as a disposal site even before anyone has applied to the\nCorps for a permit, EPA rarely exercises that authority. In 1987, when the agency\nwas vetoing Corps permits that would have authorized the developer to discharge\ninto two sites, the agency prohibited discharges into a third site nearby, even though\nthe developer had not yet sought a permit to discharge there. See 52 Fed. Reg.\n38519, 38520 (Oct. 16, 1987). While that project involved a relatively small parcel of\nland (60 acres of wetlands), in 2014, EPA began Section 404(c) proceedings to\naddress impacts from an open pit mining project in Alaska that would cover almost\n70 square kilometers and could destroy between 1200 and 4900 acres of wetlands.\nSee Environmental Protection Agency, EPA 910-R-14-001ES, An Assessment of\nthe Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska 11,13\n(Jan. 2014). Several tribes asked EPA to begin the Section 404(c) proceedings\nbefore developers applied to the Corps for a permit for the Pebble Mine project. See\nEnvironmental Protection Agency, Why We Studied the Bristol Bay Watershed.\nWhen the agency received those requests, it decided to conduct a scientific\nassessment of the Bristol Bay watershed to understand how large scale mining\ncould impact water quality and the ecosystem, which is home to one of the largest\nsockeye salmon populations in the world. Id. After completing the assessment, EPA\ndecided to begin the 404(c) process even though a developer had not yet sought a\nSection 404 permit from the Corps. See Letter from Dennis J. McLerran, Regional\nAdministrator, Environmental Protection Agency to Thomas Collier, Joe Balash, and\nColonel Christopher D. Lestochi (Feb. 28, 2014). The developer immediately sued\nEPA, but the Ninth Circuit rejected the challenge, concluding that EPA\xe2\x80\x99s initiation of\nthe 404(c) process was not a \xe2\x80\x9cfinal agency action.\xe2\x80\x9d See Pebble Limited Partnership\nv. EPA, 9th Cir., No. 3:14-cv-00097-HRH, ruling 5/28/15 (unpublished opinion).\n\n307\n\n\x0cC.\n\nStandards for the Veto\n\nSection 404(c) empowers EPA to exercise its authority whenever the Administrator\ndetermines that a discharge will have an unacceptable adverse effect on municipal water\nsupplies, shellfish beds and fishery areas, wildlife, or recreational areas. See 33 U.S.C.\n\xc2\xa7 1344(c). The statute does not further define \xe2\x80\x9cunacceptable adverse effect\xe2\x80\x9d, but EPA\xe2\x80\x99s\nregulations define it as an \xe2\x80\x9cimpact on an aquatic or wetland ecosystem which is likely to\nresult in significant degradation of municipal water supplies (including surface or ground\nwater) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or\nrecreation areas.\xe2\x80\x9d See 40 C.F.R. \xc2\xa7 231.2(e). More importantly, perhaps, the regulations\nprovide that \xe2\x80\x9cIn evaluating the unacceptability of such impacts, consideration should be\ngiven to the relevant portions of the section 404(b)(1) guidelines.\xe2\x80\x9d Id.\nSince neither the statute nor the regulations provide a clear substantive standard for EPA\xe2\x80\x99s\nexercise of authority, the agency frequently commences Section 404(c) proceedings when\nit concludes that the Corps is planning to issue, or has issued, a permit in violation of the\n404(b)(1) guidelines. For instance, in James City County v. U.S. Environmental Protection\nAgency, 955 F.2d 254 (4th Cir. 1992), EPA initially vetoed a Corps permit because the\nagency determined that the Corps incorrectly determined that there were no practicable\nalternatives for the proposed project. Similarly, in Bersani v. Robichaud, 850 F.2d 36 (2d\nCir. 1988), the Second Circuit upheld EPA\xe2\x80\x99s veto of a mall development project based on\nthe agency\xe2\x80\x99s determination that the Corps incorrectly applied the alternatives analysis.\nSince many of the projects that EPA has vetoed have been public works projects,\ndevelopers and local governments have argued that EPA should weigh and balance the\n\xe2\x80\x9cpublic interest\xe2\x80\x9d of a project against any environmental harms when determining whether a\ndischarge would have an unacceptable adverse effect. However, courts have generally\nrejected that argument. As the Fourth Circuit wrote in James City County v. Environmental\nProtection Agency, 12 F.3d 1330 (4th Cir. 1993), in response to an argument that EPA\nshould weigh the necessity of an enlarged water supply for the community against the\nenvironmental harms of the project:\n\xe2\x80\x9cCongress obviously intended the Corps ... in the initial permitting process to\nconsider the total range of factors bearing on the necessity or desirability of building\na dam in the Nation\xe2\x80\x99s waters, including whether the project was in the public\ninterest. ... Ultimately, however, recognizing the EPA\xe2\x80\x99s expertise and concentrated\nconcern with environmental matters, Congress gave the final decision whether to\npermit a project to that agency. Its authority to veto to protect the environment is\npractically unadorned. ... In our view, the EPA\xe2\x80\x99s only function relating to the\nquantities of available water is limited to assuring purity in whatever quantities the\nstate and local agencies provide. For those reasons, we think its veto based solely\non environmental harms was proper.\xe2\x80\x9d\n\n308\n\n\x0cQuestions and Comments\n1.\n\nBasis for decision: Although EPA frequently exercises its Section 404(c) authority\nwhen it determines that the Corps has misapplied the 404(b)(1) guidelines, the\nagency also exercises its authority by making a more general determination that a\ndischarge is likely to cause a significant degradation of water supplies or significant\nloss of, or damage to, fisheries, shellfishing, or wildlife habitat or recreation areas.\nWhen the agency exercises its authority in advance of a permit application, as in the\nPebble Mine case, it cannot rely on the 404(b)(1) guidelines, as there is no project\nproposal to evaluate against the guidelines.\n\n2.\n\nStandard of Review: What standard of review will courts apply to EPA\xe2\x80\x99s\ndetermination that a discharge will have an unacceptable adverse effect on\nmunicipal water supplies, shellfish beds and fishery areas, wildlife, or recreational\nareas? See James City County v. Environmental Protection Agency, 12 F.3d 1330\n(4th Cir. 1993). To the extent that EPA\xe2\x80\x99s decision is based on the 404(b)(1)\nguidelines, does EPA owe any deference to the Corps\xe2\x80\x99 interpretation of, or\napplication of, the guidelines? See in Bersani v. Robichaud, 850 F.2d 36 (2d Cir.\n1988).\n\n309\n\n\x0cDrafting Exercise\nThe Freedom of Information Act, 5 U.S.C. \xc2\xa7 552, allows any person to request and obtain\nagency records on any topic, although it exempts nine categories of records from the\ndisclosure requirement. Id. \xc2\xa7 552(b). The statute requires agencies to respond to requests\nwithin specific time periods and authorizes agencies to charge reasonable fees to find,\nduplicate and review documents that will be disclosed. Id. \xc2\xa7 552(a). The statute also\nauthorizes agencies to disclose the documents without charging fees \xe2\x80\x9cif the disclosure of the\ninformation is in the public interest because it is likely to contribute significantly to public\nunderstanding of the operations or activities of the government and is not primarily in the\ncommercial interest of the requester.\xe2\x80\x9d Id. \xc2\xa7 552(a)(4)(A)(iii). Federal agencies adopt their own\nregulations to implement FOIA and EPA\xe2\x80\x99s regulations are codified at 40 C.F.R. \xc2\xa7 2.100, et.\nseq. The agency also maintains a FOIA reference guide that outlines the process for making\na FOIA request at http://www.epa.gov/foia/guide.html\nFor this drafting exercise, you will be drafting a FOIA request to EPA, but DO NOT USE\nEPA\xe2\x80\x99S ONLINE FOIA REQUEST FORM. Instead, you should model your request on sample\nletters like those provided by the National Freedom of Information Coalition, George\nWashington University, or the Department of the Treasury. EPA\xe2\x80\x99s regulations will identify the\nappropriate person to whom your request should be directed.\nFor purposes of this drafting exercise, you are an attorney with Defenders of the Canadian\nRiver, a non-profit environmental advocacy group. Several years ago, the Corps of Engineers\nissued a Clean Water Act Section 404 permit to the Mammoth Quarry Company, authorizing\nmining activities that impact wetlands adjacent to the Canadian River. Your organization\nbelieves that the discharges authorized by the permit are having a much greater impact on\nthose wetlands than the Corps anticipated when it issued the permit. Recently, EPA has\nbeen considering initiating Section 404(c) proceedings to \xe2\x80\x9cwithdraw the specification\xe2\x80\x9d of the\nsite of Mammoth\xe2\x80\x99s discharge as a disposal site. You have heard that sometime in the last two\nmonths, Senator Letitia Fen, a supporter of the quarry, met with EPA to express her\nopposition to Section 404(c) proceedings. You have also heard that representatives of the\nMammoth Quarry Company met with EPA, within the last month, to provide the agency with\nstudies that indicate that the discharge of dredged or fill material from the quarry is not\nharming the wetlands adjacent to the Canadian River. After those meetings, EPA announced\nthat it had decided that it would not take any further action under Section 404(c) at this time.\nYou don\'t know whether Senator Fen provided EPA with any documents at her meeting with\nthe agency or whether the agency kept any minutes regarding the meetings with Senator Fen\nor the Mammoth Quarry Company, but you would like to see any documents that the\nSenator or the Quarry Company provided to EPA, any documents that EPA provided to\nthe Senator or the Quarry Company, any minutes of the meetings, and any\ncommunications between Senator Fen and EPA or the Quarry Company and EPA\nrelating to those meetings. In order to obtain those records, you need to make a request to\nEPA under the Freedom of Information Act.\n\n310\n\n\x0cA.\nPrepare a FOIA request for the documents, minutes and communications described above.\nIn preparing your request, please be sure to direct the request to the appropriate contact\nperson. Assume that you would like the agency to waive any fees for locating or reproducing\nthese records and include, in your letter, a request for a waiver of those fees. Include any\ninformation that is necessary to obtain the fee waiver.\nB.\nIn two weeks, you are scheduled to meet with several other non-profit environmental groups\nto develop an advocacy strategy regarding the Mammoth Quarry permit and you would like\nto have the EPA records by that time. Is EPA required to provide you the records within that\ntime frame? If not, can you ask EPA to expedite your request and is it likely that they will\ngrant your request to expedite if the reason for the request is as described above?\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 8, why not try a CALI lesson on the material at:\nhttp://cca.li/PZ. It should only take about 15 minutes.\n\n311\n\n\x0cChapter 9\nStates\xe2\x80\x99 Roles and State Programs\nAlthough the Corps of Engineers and the Environmental Protection Agency jointly\nadminister the Clean Water Act Section 404 program, States play a vital role in the\nprotection of wetlands. States can protect wetlands by: (1) creating their own State laws,\nregulations and programs to protect wetlands, which can be more stringent and regulate\nmore wetlands than the Section 404 program; (2) assuming authority from the Corps of\nEngineers to administer the federal Section 404 permit program, or streamlining permitting\nunder that program through the implementation of a State programmatic general permit; (3)\n\xe2\x80\x9cvetoing\xe2\x80\x9d or imposing conditions on Section 404 permits through the Clean Water Act\nSection 401 certification process; and (4) preventing the issuance of a Section 404 permit\nfor activities that violate State plans under the Coastal Zone Management Act.\n\nState Authorities\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nState Wetland Protection Programs\n404 Assumption or Programmatic General Permits\n401 Certification\nCoastal Zone Management Act Certification\n\nState programs to protect wetlands are especially important to address wetlands or\nactivities that are outside the jurisdiction of the Section 404 program. See Chapters 4 and\n5, supra.\nI.\n\nState Programs\n\nA.\n\nFederal/State Relationship\n\nThe Clean Water Act, like most federal environmental laws, adopts a cooperative\nfederalism approach, recognizing \xe2\x80\x9cthe primary responsibilities and rights of States to\nprevent, reduce and eliminate pollution...\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1251(b). The statute explicitly\nprovides that the Clean Water Act does not pre-empt State or local water pollution control\nprograms, and recognizes that States and local governments can establish programs that\n312\n\n\x0care more restrictive and regulate more waters and activities than the federal program.\nSee 33 U.S.C. \xc2\xa7 1370. Section 510 of the statute provides:\nExcept as expressly provided in this chapter, nothing in this chapter shall\n(1) preclude or deny the right of any State or political subdivision thereof or\ninterstate agency to adopt or enforce\n(A) any standard or limitation respecting discharges of pollutants, or\n(B) any requirement respecting control or abatement of pollution;\nexcept that if an effluent limitation, or other limitation, effluent standard,\nprohibition, pretreatment standard, or standard of performance is in effect\nunder this chapter, such State or political subdivision or interstate agency\nmay not adopt or enforce any effluent limitation, or other limitation, effluent\nstandard, prohibition, pretreatment standard, or standard of performance\nwhich is less stringent than the effluent limitation, or other limitation, effluent\nstandard, prohibition, pretreatment standard, or standard of performance\nunder this chapter; or\n(2) be construed as impairing or in any manner affecting any right or jurisdiction of\nthe States with respect to the waters (including boundary waters) of such States.\nId. Under this floor preemption approach, programs of states and local governments can\nbe more restrictive, but not less restrictive, than the federal program.\nIn theory, therefore, states can provide vital protection for wetlands by addressing waters\nand activities that are not regulated under the Section 404 program, or by imposing\nadditional limits on activities that are regulated under that program. However, a recent\nstudy prepared by the Environmental Law Institute found that over 2/3 of states have\nenacted laws that could limit the authority of states to regulate waters that are not\nregulated under the Clean Water Act. See Environmental Law Institute, State Constraints:\nState-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the\nScope of the Federal Clean Water Act (May 2013). Many of those laws were not targeted\nspecifically at wetlands regulation, but apply broadly to state environmental regulation or\nstate regulation of a range of activities. According to the ELI report, thirteen states have\nadopted laws that require that state regulations must be \xe2\x80\x9cno more stringent than\xe2\x80\x9d federal\nregulations. Id. at 1. Twenty-three other states have adopted laws that prohibit states from\nadopting regulations that are more stringent than federal regulations unless certain\nrequirements are met. Id. at 13-14. In addition to those limitations, the report notes that\ntwenty-two states have adopted laws that could limit state protection of wetlands because\nthe laws require state officials to compensate landowners for reductions in property value\ncaused by regulation or require state officials to assess their actions for takings implications\n313\n\n\x0cor other impacts on private property rights. Id. at 24. The report suggests that those laws\ncould chill state regulation of activities in wetlands that are not regulated under federal law.\nId.\nAlthough many states have laws that could limit the authority of the states to regulate\nactivities that are not regulated under the Clean Water Act, half of the states have adopted\nlaws and regulations that provide some protection to wetlands that are not regulated under\nthe Clean Water Act and many states have adopted laws that require permits for activities\nthat are not regulated under the Clean Water Act despite the limits identified in the ELI\nreport. In fact, the ELI report noted that 17 states that had enacted laws that could limit\nstate regulation of waters and activities that are not regulated under the Clean Water Act\nnevertheless regulated those activities. Id. at 2. Those programs, and state programs that\nprovide additional protection to wetlands that are already regulated under the Clean Water\nAct, are described in the next section.\n\nResearch Problems\nState Laws: Using the tools that you learned in your legal research class regarding\nresearching state laws, see if you can answer the following questions. When answering the\nquestions, please provide citations to support your answers.\n1. When will a government action constitute a \xe2\x80\x9ctaking\xe2\x80\x9d under Texas law?\n2. In Mississisppi, when a state action prohibits or severely limits the right of a landowner\nto conduct forestry or agricultural activities on forest or agricultural land (but does not\nresult in a taking), the landowner may still sue for compensation in an inverse\ncondemnation action. What level of reduction in property value triggers that right under\nMississippi law? Is the landowner entitled to compensation if the government is acting\nto prohibit a nuisance by the landowner?\n\n3. Does Idaho law place any limits on the authority of state agencies to adopt rules to\nprotect wetlands and waters that are more stringent than the rules adopted by the\nfederal government? If so, please describe the general limits.\n\nB.\n\nA Survey of State Programs\n\nWhile the Clean Water Act allows states and local governments to administer their own\nprograms to protect wetlands and water quality, it does not require them to do so.\nNevertheless, according to a report prepared by the Environmental Law Institute in 2008,\ntwenty three states have enacted laws and regulations to require state permits for dredge\nand fill activities in wetlands and other waters in the state. See Environmental Law Institute,\nState Wetland Protection: Status, Trends & Model Approaches 9 (March 2008) [hereinafter\n\xe2\x80\x9cELI State Wetland Protection Report\xe2\x80\x9d]. Eight of those states limit the permit requirement to\n314\n\n\x0cactivities in coastal and tidal wetlands, while the other fifteen regulate activities in\nfreshwater wetlands as well as in coastal, tidal and shoreline areas. Id. at 10. In states with\ntheir own wetlands permitting programs, a discharge may often require both a federal and\nstate wetlands permit. If the Corps and the state have not streamlined the permitting\nprocess through a State Programmatic General Permit, see infra, the project developer will\nneed to obtain permits from both the Corps and the state. As noted in Chapter 6, if the\nCorps completes its review of a section 404 permit and issues the permit before other\nagencies (including the state) have completed their reviews, the Corps will normally\ncondition the permit on approval by the other agencies. See 33 C.F.R. \xc2\xa7 325.2(d)(4).\nIn light of the fact that state programs can regulate waters that are outside of federal\njurisdiction, six states regulate \xe2\x80\x9cgeographically isolated\xe2\x80\x9d wetlands, such as the wetlands at\nissue in the Solid Waste Agency of Northern Cook County case, although some of those\nprograms are not permitting programs. See ELI State Wetland Protection Report at 11.\nStates with permit programs\nfor freshwater, coastal and\ntidal wetlands\n\nStates with permit\nprograms for coastal\nand tidal wetlands only\n\nStates with programs\nfor geographically\nisolated wetlands\n\nConnecticut, Florida, Maine,\nMaryland, Massachusetts,\nMichigan, Minnesota, New\nHampshire, New Jersey,\nOregon, Pennsylvania, Rhode\nIsland, Vermont, and Virginia\n\nCalifornia, Delaware,\nGeorgia, Louisiana,\nMississippi, North\nCarolina, South Carolina,\nand Washington\n\nIndiana, North Carolina,\nOhio, Tennessee,\nWashington, and\nWisconsin\n\nId. While some of the states with wetlands permitting programs have adopted dedicated\nwetlands permitting programs, other states rely on a patchwork of laws, such as water\npollution laws, growth management laws, shoreline management laws, and other laws, to\nregulate activities in wetlands. Id. at 11. In most states, permits are issued by a state\nagency, but some states have created programs that authorize local agencies to administer\nwetlands permit programs. Id.\nRegardless of whether states have adopted state wetlands permitting programs, every\nstate has adopted a definition of \xe2\x80\x9cwaters\xe2\x80\x9d (by legislation or regulation) that includes\nwetlands, and forty-two states have adopted statutory or regulatory definitions for\n\xe2\x80\x9cwetlands.\xe2\x80\x9d Id. at 15, 18.\nState wetlands programs are often similar to the federal program in many respects. For\ninstance, most states delineate wetlands using the 1987 Corps delineation manual,\nalthough eighteen states rely on other delineation criteria or guidelines, in addition to, or\ninstead of, the Corps manual. Id. at 19-20. Regarding mitigation, thirty six states have\nadopted legislation or policies to authorize and regulate mitigation for impacts to wetlands\n315\n\n\x0cor other aquatic resources. Id. at 23. Twenty-two states specifically authorize or require\nmitigation banking through legislation, regulations or guidance. Id. at 26. Eighteen states\nspecifically address \xe2\x80\x9cin lieu fee mitigation\xe2\x80\x9d through legislation, regulations or guidance. Id.\nat 28. Although only fourteen states have adopted statewide goals regarding wetland\nrestoration, most of those states have adopted a \xe2\x80\x9cno net loss\xe2\x80\x9d goal, similar to the federal\ngoal, or a goal of restoring a specific amount of wetland acreage within a specific timeframe. Id. at 47.\nState wetland programs are also similar to the federal program in that several agencies are\nusually involved in wetland regulation, management or protection in each state. Id. at 32. In\ntwenty-six states, two resource or environmental agencies oversee wetland activities, with\none agency generally focusing on regulatory activities, while the other focuses on nonregulatory activities. Id. at 32. In eleven states, authority over wetlands is divided among\nthree or more agencies. Id. at 33. In twelve states, though, a single state agency\nadministers all of the wetland programs in the state. Id. at 32.\nNot surprisingly, the scope of activities regulated, the resources dedicated to wetlands\nregulation, protection and restoration, and the level of monitoring and enforcement of state\nwetland protection laws vary greatly from state to state. Only sixteen states have monitoring\nand/or assessment programs that focus on wetlands, and only eight states implement a\nprogram to recruit community members as volunteer monitors for wetlands. Id. at 42, 44.\nThe level of wetland protection afforded by states is often constrained by the level of\nfunding available for wetland protection activities. Most states rely on federal grants and\ngeneral state appropriations to fund wetland programs, but more than half of the states rely,\nin part, on fees, and fifteen states rely, in part, on dedicated state appropriations. Id. at 36.\n\nState\nResearch\nPrograms\nProblems\n- Resources\nAssociation of State Wetland Managers (ASWM) Website\nState\nLaws:\nWhenPrograms\nanswering -the\nfollowing\nquestions,\nplease\nState\nWetland\nReports\nand\nGuidance\nfromprovide\nASWMcitations to support your\nanswers.\nState Wetland Program Summaries - ASWM\nState Wetland Program Summaries - Environmental Law Institute (ELI)\n1.\ndoes the\nMinnesotaStatus,\nWater Pollution\nControl\nAct define\n\xe2\x80\x9cwaters of\nthe state\xe2\x80\x9d? Which\nStateHow\nWetland\nProtection:\nTrends and\nModel\nApproaches\n- ELI\nagencies\nmake\n\xe2\x80\x9cdeterminations\xe2\x80\x9d\nregarding\nprojects\nthat\nresult\nin\nfill,\nexcavation or\nState Constraints Report - ELI\ndrainage of wetlands under the state\xe2\x80\x99s Wetland Conservation Act? Which state agency\nEPA web site for State, Tribal and local Initiatives (financial assistance, program\nis responsible for enforcing the state laws preserving and protecting groundwater\ndescriptions,\netc.)\nquantity, wetlands\nand public waters?\n2.\n\nWhat activities require a permit under Georgia\xe2\x80\x99s \xe2\x80\x9cCoastal Marshlands Protection Act of\n1970"? Who issues the permits? How are \xe2\x80\x9cmarshlands\xe2\x80\x9d defined under that Act?\n\n316\n\n\x0cInterviews\nAlexandra Dunn, Executive Director and General Counsel of the\nEnvironmental Council of the States responds to the following questions:\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nAre there regional or other variations in the attitudes that States take\ntoward wetlands regulation? (YouTube Video)\nDo many States operate their own State wetland permitting\nprograms and could you describe them generally? (YouTube Video)\nWhat are the most effective tools that States are using to protect\nwetlands? (YouTube Video)\nWhat are the greatest impediments to wetland protection in the\nStates? (YouTube video)\nWhat is the Association of Wetlands Managers and what role do they\nplay in wetland protection? (YouTube Video)\n\nJan Goldman Carter, Senior Manager and Counsel for the National Wildlife\nFederation\'s Wetlands and Water Resources Program, discusses the variety\nState wetland protection programs and the political pressure on State\nprograms (YouTube Video).\n\nII.\n\nState Assumption of the Section 404 Program and State Programmatic\nGeneral Permits\n\nA.\n\nAssumption of the 404 Permitting Program\n\nIn addition to preserving the authority\nof states to administer their own state\nwetland protection programs, the Clean\nWater Act, like most federal\nenvironmental laws, authorizes states\nto take over and administer the federal\nwetlands permitting program in lieu of\nthe Corps of Engineers.\n\nResources\nEPA State Program Rules - 40 C.F.R. Part 233\nMichigan MOA w/ EPA and Corps for\nassumption and Michigan program regs.\nNew Jersey MOA w/ EPA and Corps for\nassumption and N.J. program regs.\nASWM web page re: assumption and\nHandbook for States/Tribes re: assumption\n\nPursuant to Section 404(g) of the\nClean Water Act, a state can assume\nthe authority to issue permits for the\n317\n\n\x0cdischarge of dredged or fill material into waters regulated under the Clean Water Act other\nthan traditional navigable waters or waters seaward of the high water mark. See 33\nU.S.C. \xc2\xa7 1344(g). EPA\xe2\x80\x99s regulations also authorize tribes to assume that authority within\ntheir jurisdiction. See 40 C.F.R. \xc2\xa7 233.2 (defining \xe2\x80\x9cstate\xe2\x80\x9d to include \xe2\x80\x9cindian tribe\xe2\x80\x9d). In order to\nassume authority to administer the Section 404 permitting program, a state must enact laws\nand regulations to create a program that meets several requirements outlined in the statute\nthat are designed to ensure that the state has the same authority to administer the Section\n404 permitting program as the Corps would have. See 33 U.S.C. \xc2\xa7 1344(h)(1). The\nrequirements of the state program must be at least as stringent as, and may be more\nstringent than, the federal requirements. See 40 C.F.R. \xc2\xa7 233.1(c)-(d). Although the Corps\nadministers the Section 404 permitting program, Congress gave EPA, rather than the\nCorps. the authority to review applications by states to assume Section 404 permitting\nauthority. If EPA determines that the state program meets the requirements of the statute,\nthe agency will approve the program and the state will assume authority to issue Section\n404 permits in lieu of the Corps. See 33 U.S.C. \xc2\xa7 1344(h)(2). The Corps will, however,\ncontinue to have authority to issue permits for discharges into traditional navigable waters\nand waters seaward of the high water mark. In addition, to the extent that the state program\nis more stringent than the federal program, those more stringent provisions can only be\nenforced by the state and are not subject to federal oversight and enforcement. See 40\nC.F.R. \xc2\xa7 233.1(c).\nThe rest of the state program is, however, subject to federal oversight. After EPA approves\na state\xe2\x80\x99s request to assume Section 404 permitting authority, the state must still provide\nEPA notice and an opportunity to comment on individual and general permits that the state\nreviews or prepares. See 33 U.S.C. \xc2\xa7 1344(j). EPA can, however, waive its authority to\nreview categories of discharges in the state, by adopting regulations to waive the authority.\nId. \xc2\xa7 1344(k)-(l). If EPA doesn\xe2\x80\x99t waive its authority to review permits issued by the state,\nEPA solicits comments from the Corps, the Fish and Wildlife Service and the National\nMarine Fisheries Service when determining whether to submit comments to the state and\nwhen framing comments for the permit. See 40 C.F.R. \xc2\xa7 233.50(b). If EPA objects to a\npermit that the state plans to issue, the state cannot issue the permit unless EPA withdraws\nits objection. See 33 U.S.C. \xc2\xa7 1344(j). If the state does not deny the permit or revise it to\naddress EPA\xe2\x80\x99s objections, the state loses the authority to issue that permit and the Corps\nprocesses that permit application. Id.\nWhile a State is administering the Section 404 permitting program, EPA also retains the\nauthority to bring enforcement actions, just as it would if the Corps were administering the\nprogram. See 33 U.S.C. \xc2\xa7 1344(n). Finally, if EPA determines that a state that has\nassumed authority to issue Section 404 permits is not administering the program in\naccordance with federal standards, the agency can, after notice and a hearing, withdraw\nthe state\xe2\x80\x99s authority to administer the program. Id. \xc2\xa7 1344(i).\nAlthough the Clean Water Act authorizes states to assume Section 404 permitting authority\n318\n\n\x0cin lieu of the Corps, only two states have done so. Michigan assumed authority for the\nprogram in 1984, see 40 C.F.R. \xc2\xa7 233.70, and New Jersey assumed authority for the\nprogram in 1994. See 40 C.F.R. \xc2\xa7 233.71.\nB.\n\nState Programmatic General\nPermits\n\nResources\nStates that do not assume Section 404\nASWM Website re: SPGPs\npermitting authority from the Corps can still\nplay a greater role in the administration of\nthe federal program and streamline\npermitting for developers in the state through a State Programmatic General Permit. As\nnoted in Chapter 6, supra, Section 404(e) authorizes the Corps of Engineers to issue\ngeneral permits \xe2\x80\x9con a state, regional or nationwide basis for any category of activities\ninvolving discharges of dredged or fill material if the Secretary determines that the activities\nin such category are similar in nature, will cause only minimal adverse environmental\neffects when performed separately, and will have only minimal cumulative adverse effect on\nthe environment.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1344(e).\nPursuant to that authority, the Corps has issued programmatic general permits in several\nstates that provide that persons who obtain a permit under the state wetlands permitting\nprogram do not have to apply for an individual Section 404 permit from the Corps as long\nas they comply with the terms of the programmatic general permit. See, e.g. Department of\nthe Army Programmatic General Permit, State of Maryland - MDSPGP-4 (Oct. 1, 2011).\nThe general permit only applies to specific categories of activities in the state (i.e.,\ndischarges in a specific region, discharges that have impacts below a specific threshold,\ndischarges associated with specific types of activities) and the Corps issues the permit\npursuant to the normal general permitting procedures described in Chapter 6 after the\nCorps determines that the activities in the permit are similar in nature and will cause only\nminimal adverse effect on the environment. See 33 U.S.C. \xc2\xa7 1344(e). The programmatic\ngeneral permit, therefore, streamlines the permitting process in those states for persons\nengaged in the activities authorized by the permit. Like other general permits,\nprogrammatic general permits are issued for a five year term, but can be revoked if the\nCorps determines, after opportunity for a public hearing, that the activities authorized by the\npermit have an adverse effect on the environment or are more appropriately authorized by\nindividual permits. Id.\nWhen the Corps issues a programmatic general permit, the permit will include conditions\nthat specify whether, and to what extent, the Corps, EPA and other federal agencies will\nreview or comment on the use of the general permit by a discharger. See, e.g. MDSPGP-4,\nsupra at 6-9. For activities that have very little impact, the permit may provide very limited\nfederal review. Id. The states for which the Corps has issued programmatic general permits\nare listed below.\n319\n\n\x0cStates with Programmatic General Permits\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\xef\x82\xb7\n\nConnecticut (all waters)\nDelaware (all waters)\nFlorida (limited waters)\nLouisiana (limited waters)\nMaine (all waters)\nMaryland (all waters)\nMassachusetts (all waters)\nNew Hampshire (all waters)\nNew Jersey (all waters)\nNorth Carolina (coastal zone)\nPennsylvania (all waters)\nRhode Island (all waters)\nUtah (limited waters)\nVermont (all waters)\nVirginia (limited waters)\n\nQuestions and Comments\n1.\n\nWhy do you think that more states have not assumed administration of the Section\n404 permitting program from the Corps, when so many states have taken over the\nClean Water Act Section 402 permitting program and other federal environmental\npermitting programs? What are the benefits and disadvantages of taking over the\nfederal program? See Association of State Wetland Managers, Clean Water Act\nSection 404 State Assumption (2010).\n\n2.\n\nWhat are the similarities and differences between assumption of the Section 404\npermitting program and a statewide programmatic general permit?\n\n3.\n\nFor a more detailed examination of state assumption of the Clean Water Act 404\nprogram, see Lance D. Wood, The ECOS Proposal for Expanded State Assumption\nof the CWA \xc2\xa7\xc2\xa7 404 Program: Unnecessary, Unwise and Unworkable, 31:3 Nat\xe2\x80\x99l\nWetlands Newsletter 13 (2009); Oliver A. Houck & Michael Rolland, Federalism in\nWetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404\nand Related Programs to the States, 54 Md. L. Rev. 1242 (1995). Professor\n320\n\n\x0cJonathan Adler explores whether federal regulation has \xe2\x80\x9ccrowded out\xe2\x80\x9d state\nwetlands regulation in When is Two a Crowd? The Impact of Federal Action on\nState Environmental Regulation, 31 Harv. Envtl. L. Rev. 67 (2007).\n\nInterview\nAlexandra Dunn, Executive Director and General Counsel for the\nEnvironmental Council of the States, discusses impediments to\nassumption by States of the 404 permitting program. (YouTube Video)\n\nResearch Problems\nState PGPs: State PGPs can be found on the Corps\xe2\x80\x99 websites for the Division in which a\nState is located or on the website of the State agency that regulates water quality. Please\nanswer the following questions regarding the PGPs of Louisiana and North Carolina.\n1. Does the Louisiana Programmatic General Permit apply to the discharge of dredged or fill\nmaterial into waters outside of the Louisiana Coastal Zone? Would minor road crossings that\ncause the loss of less than .5 acres of special aquatic sites be regulated as Category I or\nCategory II activities under that permit? If a person submits a complete application to\nrequest authorization to undertake a Category I activity under the Programmatic General\nPermit, and has not received an authorization to proceed with the activity from the Corps,\nmust the person wait for authorization or can they proceed with their activity?\n2. What activities are authorized by the North Carolina Programmatic General Permit? Does\nthe permit impose any limits on mechanized land-clearing activities in waters or wetlands?\n\nIII.\n\n401 Certification\n\nWhile states can adopt their own state wetlands permitting programs, assume the federal\npermitting program and streamline regulation through state programmatic general permits,\nalmost half of the states do not take those approaches and rely solely on the Clean Water\nAct Section 401 certification process to regulate wetlands in their state. According to a\n321\n\n\x0c2008 ELI report, 22 states do not have any wetlands regulatory program and rely solely on\nthe 401 certification process to regulate wetlands. See ELI State Wetland Protection Report\nat 13. An additional 15 states regulate coastal wetlands, isolated wetlands, or other\nsubcategories of wetlands through a state permitting program, but rely on section 401\ncertification as the primary form of regulation for other wetlands in the state. Id. Thus,\nsection 401 certification is probably the most important tool in the Clean Water Act for state\nregulation of wetlands.\nSection 401 of the Clean Water Act provides:\nAny applicant for a Federal license or permit to conduct any activity ...which may\nresult in any discharge into the navigable waters, shall provide the licensing or\npermitting agency a certification from the State in which the discharge originates or\nwill originate ... that any such discharge will comply with [state water quality\nstandards and several other requirements of the Clean Water Act] ... No license or\npermit shall be granted until the certification required by this section has been\nobtained or has been waived ... No license or permit shall be granted if certification\nhas been denied by the State \xe2\x80\xa6.\n33 U.S.C. \xc2\xa7 1341(a)(1). In light of that requirement, whenever a person applies to the\nCorps for a Section 404 permit, or whenever a person applies for any Federal license or\npermit that results in a discharge into the navigable waters (including jurisdictional\nwetlands), they must provide the permitting or licensing agency with a certification from the\nState that the activity to be authorized by the permit complies with state water quality\nstandards and other requirements of the Clean Water Act. The state can (1) certify that the\ndischarge meets the state standards and requirements; (2) deny certification; or (3)\nattach comments or conditions to any permit that the Corps issues to ensure that the\ndischarge complies with state water quality standards and \xe2\x80\x9cappropriate requirement[s] of\nstate law\xe2\x80\x9d. Id. \xc2\xa7 1341(d). The Corps (or other permitting or licensing agency) cannot issue\nthe permit unless the State certifies that the activity complies with the state standards or\nwaives its right to certify. Id. \xc2\xa7 1341(a). If a state fails or refuses to act on a request for 401\ncertification within 60 days after receiving the request, the state waives its right to veto or\ncondition the permit. See 33 C.F.R. \xc2\xa7 325.2(b)(1)(ii). Any conditions that the state attaches\nto a 401 certification become conditions of the federal permit or license. See 33 U.S.C.\n\xc2\xa7 1341(d).\nIn deciding whether to certify a discharge, deny certification or include conditions in the\npermit for the discharge, states can consider not only the immediate effects of the\ndischarge on water quality in the state, but the longer term effects of the activity authorized\nby the discharge on water quality. See 40 C.F.R. \xc2\xa7 121.2(a)(3)-(4); 33 C.F.R. \xc2\xa7 320.3(a);\nPUD No. 1 of Jefferson County v. Washington Department of Environmental Quality, 511\nU.S. 700 (1994).\n\n322\n\n\x0cAs a result, even when a state does not have a state wetlands permitting program, they can\nexert some control over discharges into wetlands in their state, as long as the discharges\nrequire a Section 404 permit (or other federal permit or license), and as long as the state\xe2\x80\x99s\nwater quality standards or \xe2\x80\x9cother appropriate requirements of state law\xe2\x80\x9d provide protection\nfor wetlands. The 2008 ELI report found that states rarely deny or waive 401 certification,\nalthough they may frequently include conditions in their certifications. See ELI State\nWetland Protection Report at 15. The number of 401 certifications issued each year by\nstates varies greatly, from Connecticut, issuing fewer than 20 certifications per year, to\nCalifornia, issuing more than 1000 certifications per year. Id. States that have their own\nstate wetland permitting and regulatory programs generally rely less frequently on Section\n401 certification to protect wetlands.\nAs noted above, in determining whether to grant, deny or condition 401 certification for a\ndischarge into wetlands, states focus on whether the discharge violates state water quality\nstandards and other appropriate requirements of state law. The Clean Water Act requires\nstates to establish water quality standards, which are reviewed and approved by EPA, for\nthe waters in the state that are regulated under the Act. See 33 U.S.C. \xc2\xa7 1313. Water\nquality standards generally include use designations for waters in the state and water\nquality criteria to protect the various uses of water. See 40 C.F.R. \xc2\xa7 131.3(i). The\nstandards are set at levels to \xe2\x80\x9cprotect the public health or welfare, enhance the quality of\nwater and serve the purposes of the Act.\xe2\x80\x9d Id.\nRegarding use designations, states can establish a range of acceptable uses for waters in\nthe state, including recreation, drinking water supplies, fishing, and others. See 40 C.F.R.\n\xc2\xa7 131.10. Water quality criteria are then established for each use, or for all waters in the\nstate, to ensure that the waters can be used for the designated uses. Id. \xc2\xa7 131.11. The\ncriteria may be specific numerical limits on pollutant levels in a body of water or they may\nbe narrative criteria that don\xe2\x80\x99t include specific numerical limits. Id. States assign use\ndesignations to each body of water in the state that is regulated under the Clean Water Act\n(and can assign different use designations for different segments of the water), and the\nwater quality criteria that apply to the assigned use, or to all waters in the state, set the\npollution limits for that body of water (or segment of the body of water). See 40 C.F.R.\n\xc2\xa7 131.10. Georgia\xe2\x80\x99s water quality standards are linked here as an example.\nAs noted above, every state has adopted a definition of \xe2\x80\x9cwaters\xe2\x80\x99 that includes wetlands.\nHowever, most states have not adopted water quality standards that are specifically\ndesigned to provide protection to wetlands (i.e., by designating uses for wetlands or\ndeveloping specific criteria for wetlands). According to the Environmental Law Institute\xe2\x80\x99s\n2008 50 state survey, only 13 states have adopted water quality standards that are\nspecifically targeted at protecting wetlands. See ELI State Wetland Protection Report at 37.\nThat doesn\xe2\x80\x99t mean that water quality standards in the other states might not provide\nprotection to wetlands and might not be used as the basis for denying or conditioning 401\ncertification for a discharge that affects wetlands. Indeed, other water quality standards\n323\n\n\x0cmay provide incidental protection to wetlands, even though they were not adopted with that\nspecific goal in mind. For instance, water quality standards that are not wetland-specific\noften include limits to address flood control, sediment trapping, habitat protection, pollution\ncontrol, shoreline protection, and maintenance of stream flow. Id. at 38.\nWhile a variety of water quality standards may provide incidental protection to wetlands,\nwetland-specific water quality standards can be a more effective way to provide wetland\nprotection and to serve as a basis for denial or conditioning of 401 certification. EPA\npublished guidance in 1990 to assist states in developing water quality standards\nspecifically targeted to protect wetlands. See U.S. Environmental Protection Agency, EPA\n440/S-90-011, Water Quality Standards for Wetlands: National Guidance (July 1990).\nFrequently, whether a state adopts wetland-specific water quality standards depends on\nthe broader range of tools that the state uses to protect wetlands. Most of the states that\nhave adopted wetland-specific water quality standards do not have a permitting program\nthat applies to all wetlands in the state and rely heavily on the Section 401 certification\nprocess to regulate wetlands. Id. at 37. Similarly, many of the 37 states that have not\nadopted wetland-specific water quality standards do not rely primarily on the 401\ncertification process to protect wetlands. Id at 39.\nWhile the Section 401 certification process primarily protects the interests of the state\nwhere a discharge of dredged or fill material will occur, the statute also authorizes EPA to\nnotify other states about potentially permitted discharges if the agency determines that the\ndischarge may affect the water quality in the other states. See 33 U.S.C. \xc2\xa7 1341(a)(2).\nBased on recommendations from the state and EPA, the federal permitting agency may\nthen include conditions in the federal license or permit necessary to meet water quality\nstandards in the other states or may deny the permit if it is not possible to condition the\npermit to meet those standards. Id.\nQuestions and Comments\n1.\n\nWater Quality Standards: In addition to designated uses and water quality criteria,\nstate water quality standards usually include provisions to ensure compliance with a\nstate \xe2\x80\x9canti-degradation policy.\xe2\x80\x9d The anti-degradation policy is designed to maintain\nexisting water uses and a level of water quality necessary to protect and maintain\nexisting water uses. See 40 C.F.R. \xc2\xa7 131.12. In PUD No. 1 of Jefferson County v.\nWashington Department of Environmental Quality, 511 U.S. 700 (1994), the\nSupreme Court held that a state can deny 401 certification or condition it on\ncompliance with any one of the three components of water quality standards - uses,\ncriteria, or standards necessary to comply with an anti-degradation policy.\n\n324\n\n\x0c2.\n\nAppropriate requirements of state law: Section 401 authorizes states to deny or\ncondition permits on compliance with \xe2\x80\x9cappropriate requirements of state law.\xe2\x80\x9d While\nthe Supreme Court, in the PUD No. 1 of Jefferson County case, held that water\nquality standards were \xe2\x80\x9cappropriate requirements of state law\xe2\x80\x9d, the Court refused to\n\xe2\x80\x9cspeculate on what additional state laws, if any, might be incorporated\xe2\x80\x9d by that\nlanguage.\n\n401 Certification Resources\n401 Certification and wetlands - EPA\nWater Quality Standards for Wetlands - EPA\nEPA Guidance on Water Quality Standards for Wetlands\nSection 401 Certification Handbook for States and Tribes (EPA)\nEPA Guidance on Setting Nutrient Criteria for Wetlands in WQ Standards\nASWM report on Section 401 Certification Best Practices for States\nWater Quality Standard Regulations - 40 C.F.R. Part 131\nWater Quality Standards - EPA Web Page\nWater Quality Standards Handbook - EPA\n\nInterview\nAlexandra Dunn, Executive Director and General Counsel for the\nExecutive Council of the States, discusses the way in which States use\nthe 401 certification process to protect wetlands. (YouTube Video).\n\nResearch Problems\nState Laws: When answering the following questions, please provide citations to support\nyour answers.\n1. What agency is responsible for adopting water quality standards in the State of North\nCarolina? How are wetlands defined by regulation for purposes of that law?\n2. What agency is responsible for adopting water quality standards in the State of Wyoming?\nHow are wetlands defined by regulation for purposes of that law?\n\n325\n\n\x0cIV.\n\nCoastal Zone Management Act Certification\n\nIn addition to the tools outlined above, some states can also utilize the Coastal Zone\nManagement Act\xe2\x80\x99s certification process to protect wetlands in the state. Under the Act,\ncoastal states (states that border the Atlantic, Pacific and Arctic Oceans, the Gulf of\nMexico, the Long Island Sound, or one or more of the Great Lakes) prepare coastal zone\nmanagement plans, which are reviewed and approved by the Secretary of Commerce. See\n16 U.S.C. \xc2\xa7 1455. Approved programs are eligible for federal funding to assist in\nimplementation of the programs. Id. Twenty-nine states have approved coastal zone\nmanagement programs. See U.S. Department of Commerce, National Oceanographic and\nAtmospheric Administration, State Coastal Management Program Manager and Federal\nConsistency Contacts. The states with approved programs are: Alabama, California,\nConnecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine,\nMaryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey,\nNew York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina,\nTexas, Virginia, Washington, and Wisconsin. Id.\nTo ensure consistency with the state programs, any person who applies for a federal permit\nor license to conduct an activity that will affect land or water use or natural resources of the\ncoastal zone must provide, as part of the permit or license application, \xe2\x80\x9ca certification that\nthe proposed activity complies with the enforceable policies of the state\xe2\x80\x99s approved\nprogram and that such activity will be conducted in a manner consistent with the program.\xe2\x80\x9d\nSee 16 U.S.C. \xc2\xa7 1456(c)(3)(A). Consequently, if a proposed discharge of dredged or fill\nmaterial will affect the land, water or resources of the coastal zone in a state with an\napproved coastal zone management program, the applicant for a section 404 permit will\nneed to submit a certification from the state that the discharge complies with, and is\nconsistent with, the state\xe2\x80\x99s coastal zone management program. If the applicant does not\nsubmit the certification, the Corps will not issue the Section 404 permit. See 33 C.F.R.\n\xc2\xa7 325.2(b)(2)(ii). Pursuant to this authority, therefore, a state could refuse to certify a\ndischarge that would harm wetlands in the coastal zone if the discharge was not consistent\nwith the state\xe2\x80\x99s program or did not comply with the program.\n\n326\n\n\x0cHypothetical\nThe State of Colorado does not have any laws that require persons to obtain permits from the State to\nundertake activities that impact wetlands in the State. Assume, for purposes of this question, that Colorado\ndoes not issue Clean Water Act Section 402 permits and that those permits are issued by EPA. The City of\nAlamosa, Colorado is upgrading its sewage treatment plant and has applied to EPA to amend its permit\nunder Section 402 of the Clean Water Act to discharge treated wastewater into the Rio Grande River. The\nState of Colorado is concerned that high levels of nutrients and chlorine discharged from the sewage\ntreatment plant might harm the freshwater wetlands that are located downstream of the treatment plant,\nadjacent to the Rio Grande River. Will the city be required to obtain a permit or other approval from the\nState of Colorado as part of the Section 402 permit process? Is there any action that Colorado can take to\nlimit the amount of nutrients or chlorine that the plant will be allowed to discharge under its Section 402\npermit? Could the State rely on a local ordinance of the City of Alamosa that limits the amount of nutrients\nthat are discharged into the Rio Grande River?\nThe Rio Grande River flows south from Colorado into New Mexico. If the state of New Mexico is also\nconcerned about the levels of nutrients and chlorine that will be discharged by the treatment plant, is there\nany action that it can take to limit the amount of nutrients or chlorine that the plant will be allowed to\ndischarge under its Section 402 permit? With what success? It is not necessary to provide specific state\nstatutory provisions to answer these questions.\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 9, why not try a CALI lesson on the material at: http://cca.li/Q0. It should\nonly take about 15 minutes.\n\n327\n\n\x0cChapter 10\nAdministrative Appeals, Judicial Review\nand Enforcement\nWhen the Corps of Engineers or EPA takes an action under the Clean Water Act, or fails to\ntake an action, landowners, interest groups, states, and any number of other persons may\nseek to challenge the agencies\xe2\x80\x99 action or inaction. Part I of this chapter examines the\nadministrative and judicial avenues for appealing those decisions.\nHowever, the Corps and EPA are not simply defendants in administrative and judicial\nproceedings. Whenever a person fails to comply with the permitting requirements or other\nrequirements of the Clean Water Act, the agencies can take a variety of administrative or\njudicial enforcement actions. Part II of this chapter examines those enforcement options.\nI.\n\nAdministrative Appeals and Judicial Review\n\nA.\n\nAdministrative Appeals of Corps\xe2\x80\x99\ndecisions\n\nResources\nCorps Administrative Appeal Regulations\nFact Sheet and Request for Appeal (Seattle\nDistrict of the Corps)\nCorps videos describing appeals process\nFlow chart of appeal process for permit\ndecisions and for approved jurisdictional\ndeterminations\nRGL 06-01 - Timeliness of a request for\nappeal\n\nThe Clean Water Act does not explicitly\nprovide for an administrative process to\nreview the Corps\xe2\x80\x99 actions in administering\nthe Section 404 permit program and there\nwas no administrative appeal process for\nthe program for the first several decades of\nits existence. To the extent that persons\nwanted to challenge a Corps decision to\nissue or deny a permit or to take some\nother action, they could only challenge\nthose actions in court, if at all. However, in\n1999 and 2000, the Corps of Engineers adopted regulations that created an administrative\nappeal program for final permit decisions, see 64 Fed. Reg. 11,708 (March 9, 1999) and\nfinal jurisdictional determinations. See 65 Fed. Reg. 16,486 (March 28, 2000). One of the\nadvantages of the program for the Corps and for landowners is that it should lead to more\nuniform and consistent decision-making. As noted in Chapters 4 and 5, absent an appeal,\nfinal permit decisions and final jurisdictional determinations are made at the District level,\n328\n\n\x0cby 43 different District Engineers. The appeal process adopted by the Corps provides for\nreview at the Division level. Since there are only 9 Divisions, as opposed to 43 Districts, the\ndecision-making should be more uniform and consistent. (Note: Although there are 9\nDivisions, the Transatlantic Division does not issue Section 404 permits, since the Division\nonly encompasses the Middle East and Asia).\nSince administrative processes are generally quicker and less expensive than judicial\nprocesses, the administrative appeal process should also save the Corps and challengers\ntime and money by keeping challenges out of court. It should also provide the Corps with\nan additional opportunity to develop a record that can withstand judicial challenge if the\nagency\xe2\x80\x99s decision is ultimately contested in court.\n1.\n\nReviewable Actions\n\nThe Corps\xe2\x80\x99 regulations limit the agency\nAppealable action means an approved\nactions\nthat\ncan\nbe\nappealed\njurisdictional determination, a permit\nadministratively. Under the regulations,\ndenial, or a declined permit. 33 C.F.R.\nlandowners and permit applicants can\n\xc2\xa7 331.2.\nappeal: (1) an approved jurisdictional\ndetermination; (2) a written denial of an\nindividual permit application with prejudice\n(a permit denial); and (3) an individual permit or letter of permission that the applicant has\ndeclined to accept because he has objections to the terms and conditions of the permit (a\ndeclined permit). See 33 C.F.R. \xc2\xa7 331.2.\nConsequently, a preliminary jurisdictional determination, in which the Corps indicates that\nthere may be jurisdictional waters on a parcel of property or which indicates the\napproximate location of jurisdictional waters on a parcel of property, cannot be appealed\nadministratively, while an approved jurisdictional determination can be appealed\nadministratively. Id. As noted in Chapter 4, supra, an approved jurisdictional determination\nis an official determination by the Corps that there are, or are not, jurisdictional waters on a\nparcel of property, and outlining the limits of the waters. See 33 C.F.R. \xc2\xa7 331.2.\nRegarding permit decisions, if the Corps denies an individual permit request without\nprejudice, for instance, because a state denied Section 401 certification or refused to\ncertify that the discharge was consistent with a coastal zone management plan, the Corps\xe2\x80\x99\npermit denial cannot be administratively appealed. Id. The Corps\xe2\x80\x99 denial of an individual\npermit request can only be challenged administratively when the Corps denies the permit\nwith prejudice. Further, if the Corps determines that a general permit does not authorize\na particular activity, that decision cannot be appealed administratively. The administrative\nappeal process is limited to individual permit decisions. Id.\nIn addition to limiting the actions that can be challenged administratively, the regulations\n329\n\n\x0climit who can raise those challenges. Only \xe2\x80\x9caffected parties\xe2\x80\x9d, defined as permit applicants,\nlandowners or other persons with a substantial and identifiable legal interest in the property\nat issue, can bring administrative challenges. Id. Neighbors, competitors, interest groups,\nstate or local governments, and other interested parties can only challenge actions of the\nCorps judicially, if at all.\n2.\n\nReview Process\n\nAt the time that the Corps makes a decision at the District level that can be appealed under\nits regulations, the agency provides a notice to the person to whom the decision is directed\nthat the decision can be appealed, a fact sheet describing the appeal process, and a form\nthat the person can use to request an appeal of the decision. See 33 C.F.R. \xc2\xa7 331.4. If the\npermit applicant or landowner wishes to appeal, they must file a request for appeal, stating\nthe reasons for the appeal, within sixty days of the notice from the Corps. Id. \xc2\xa7 331.6.\nWhile EPA\xe2\x80\x99s administrative appeal process and the administrative appeal processes of\nmany agencies provide for review and decision-making by a centralized body, usually at\nthe headquarters level, the Corps\xe2\x80\x99 regulations provide for review and ultimate decisionmaking on appeals at the Division level. Id. \xc2\xa7 331.9. Thus, when a permit applicant or\nlandowner appeals a decision of a Corps District, a Review Officer for the Division will\noversee the appeal. Id. \xc2\xa7 331.3. The regulations do not require that the Corps provide\npublic notice of the appeal and do not provide for a formal hearing. Instead, the regulations\nauthorize an informal meeting or conference call for appeals of jurisdictional determinations\nand an informal conference for appeals of permit decisions. Id. \xc2\xa7 331.7.\nUltimately, the Division Engineer has limited authority to overturn the District\xe2\x80\x99s decisions.\nThe Division Engineer can only overturn the District Engineer\xe2\x80\x99s factual findings if they are\nnot supported by substantial evidence on the administrative record prepared by the\nDistrict. Id. \xc2\xa7 331.9. In addition, the Division Engineer can only overturn other portions of\nthe decision below if they are \xe2\x80\x9carbitrary, capricious, an abuse of discretion, ..., or plainly\ncontrary to a requirement of law, regulation, an Executive Order, or officially promulgated\nCorps policy guidance.\xe2\x80\x9d Id. \xc2\xa7 331.9(b). The Division Engineer must issue a final decision in\nwriting, id., and should normally make the decision within 90 days after the permit applicant\nor landowner begins the appeal process. Id. \xc2\xa7 331.8.\nThe Corps\xe2\x80\x99 regulations provide that decisions on appeals are \xe2\x80\x9conly applicable to the instant\nappeal and [have] no other precedential effect.\xe2\x80\x9d Id. \xc2\xa7 331.7(g). Nevertheless, each of the\nDivisions that is involved in Section 404 permitting makes those decisions available on a\nwebsite for the Division. The following table provides links for the Divisions.\nGreat Lakes and Ohio River\n\nMississippi Valley\n\nNorth Atlantic\n\nNorthwestern\n\nPacific Ocean\n\nSouth Atlantic\n\nSouth Pacific\n\nSouthwestern\n\n330\n\n\x0cQuestions and Comments\n1.\n\nPreliminary jurisdictional determinations of the Corps cannot be administratively\nappealed. Neither can permit denials without prejudice, cease and desist orders\nissued by the Corps, delays in processing of Corps permits, and many other Corps\nactions. Why do you think that the Corps did not provide for administrative appeals\nof a broader range of actions? Similarly, why did the Corps establish the appeals\nprocess for permit decisions and jurisdictional determinations in separate\nrulemakings? See 65 Fed. Reg. 16,486 (March 28, 2000); 64 Fed. Reg. 11,708\n(March 9, 1999).\n\n2.\n\nThird parties: Only permit applicants and landowners can file administrative\nappeals of Corps actions. While federal rules for intervention may provide\nopportunities for third parties to become involved in judicial challenges to Corps\nactions, those rules do not apply to administrative proceedings. Instead, the\nCorps regulations do not provide any procedure for third parties to seek to be\ninvolved in the appeal process and only provide limited authority for the Review\nOfficer to invite appropriate third parties to participate informally in the proceedings.\nSee 33 C.F.R. \xc2\xa7 331.7(e)(3).\n\n3.\n\nVolume: When the Corps issued the initial notice of proposed rulemaking for the\nadministrative appeals program, it anticipated that the program would consume\nsignificant resources because there would be a high volume of appeals. See 60\nFed. Reg. 37,280, 37,283 (July 19, 1995). However, fewer than 1% of individual\npermit and jurisdictional determinations are appealed. See Kim D. Connolly, The\nCorps Administrative Appeal Process, in Wetlands Law and Policy: Understanding\nSection 404 361 (American Bar Association, Section on Environment, Energy and\nResources 2005).\n\n4.\n\nIssue Exhaustion: To the extent that the Corps\xe2\x80\x99 regulations require persons to\nchallenge the agency\xe2\x80\x99s decisions administratively before challenging the decisions\nin court, see 33 C.F.R. \xc2\xa7 331.12, general administrative law principles require\nchallengers to alert the agency to their specific positions and contentions in the\nadministrative appeal \xe2\x80\x9cin order to allow the agency to give the issue meaningful\nconsideration\xe2\x80\x9d or face dismissal of those challenges in court for failure to exhaust\nadministrative remedies. See, e.g., Forest Guardians v. United States Forest\nService, 641 F.3d 423 (10th Cir. 2011).\n\n331\n\n\x0cHypotheticals\nIn which of the following cases could the challenger pursue an administrative appeal?\n1. Juan Lagares would like to challenge the preliminary jurisdictional determination that the\nCorps issued because the Corps concluded that the wetlands on his property may be \xe2\x80\x9cwaters\nof the United States.\xe2\x80\x9d\n2. Phyllis Jones would like to challenge the approved jurisdictional determination that the Corps\nissued to her neighbor, Juan Lagares, because the Corps ultimately concluded that the\nwetlands on his property were not \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d\n3. Rollie Wright planned to build a dock on his property and indicated to the Corps that he\nplanned to construct the dock in accordance with a regional general permit issued by the local\nCorps district. The local Corps district informed Wright that the construction was not authorized\nby the general permit, and he would like to challenge that decision.\n4. Rollie Wright applied to the Corps for an individual Section 404 permit to authorize\nconstruction of his dock, but the State refused to issue a Section 401 certification. Accordingly,\nthe Corps denied Wright\xe2\x80\x99s permit application without prejudice. Wright would like to challenge\nthat decision.\n5. The Shea Development Corporation applied to the Corps for an individual Section 404\npermit to authorize construction of a golf course. The Corps issued the permit with a condition\nthat Shea restore or enhance 50 acres of wetlands in the watershed in which the development\nwill take place or purchase mitigation credits to restore or enhance 50 acres of wetlands in that\nwatershed. Shea would like to challenge the mitigation condition in the permit.\n\n332\n\n\x0cResearch Problems\nAlthough the Corps\xe2\x80\x99 administrative appeal decisions are not available on Westlaw or Lexis, the\nCorps\xe2\x80\x99 Divisions post the decisions on their websites, as noted above. Please answer the\nfollowing questions based on the information provided on the agency\xe2\x80\x99s websites.\n1. Your client was denied a Section 404 permit for development in Cherry Hill, New Jersey and\nyou are considering an administrative appeal. Between 2001 and 2013, how frequently did the\nCorps Division that will hear your appeal find that an appeal of a permit denial or proffered permit\nhad merit?\n2. Your client wants to challenge an approved jurisdictional determination for property that she\nowns in Galveston, Texas, as she believes that the ponds on her property are not \xe2\x80\x9cwaters of the\nUnited States.\xe2\x80\x9d You have heard that the Division that would hear your appeal overturned a\njurisdictional determination from your district with similar facts in 2012. Although the Corps\xe2\x80\x99\nadministrative appeal decisions are not precedential, you are interested in examining that\ndecision. Please find that decision and identify the reasons that the Division concluded that the\nlandowner\xe2\x80\x99s appeal had merit.\n3. For decisions appealed in 2011, in the South Atlantic Division, from which District did most of\nthe meritorious appeals to permitting decisions originate? From which district did most of the\nmeritorious appeals to jurisdictional determinations originate? Between 2000 and 2012, when\npermit applicants challenged a permit denial to the Division, how frequently did the challenge\nultimately result in a permit issuance by the Corps District?\n\nB.\n\nJudicial Review\n\n1.\n\nReviewable Actions\n\nThe Clean Water Act includes a judicial review provision that authorizes review of many\nEPA actions, but the provision does not explicitly apply to any of EPA\xe2\x80\x99s actions regarding\nthe Section 404 program, and it does not apply to any actions of the Corps of Engineers.\nSee 33 U.S.C. \xc2\xa7 1369. Despite the narrow wording of the statute, the U.S. Court of Appeals\nfor the Sixth Circuit has interpreted it to authorize persons to challenge the WOTUS rule\nadopted by EPA and the Corps in the federal appellate courts, see Murray Energy Corp. v.\nUnited States Department of Defense (In re: U.S.D.O.D.), 817 F.3d 261 (6th Cir. 2016), and\nthe Supreme Court is reviewing that interpretation during the 2017 term. The Court\xe2\x80\x99s\ndecision should shed additional light on the breadth of review of Section 404 actions by\nEPA and the Corps under the Clean water Act\xe2\x80\x99s judicial review provision.\nThe Act also includes a citizen suit provision, discussed later, that authorizes suits\nagainst EPA if the agency fails to perform a non-discretionary duty. See 33 U.S.C. \xc2\xa7 1365.\nHowever, most of the lawsuits that might be brought against EPA regarding wetlands, such\nas a challenge to regulations implementing Section 404, approval or denial of state\n333\n\n\x0cprogram assumption, exercise of a Section 404 veto, or an enforcement order, involve the\nexercise of discretion by the agency, rather than a failure to perform a non-discretionary\nduty. The citizen suit provision is even less helpful with regard to challenging actions of the\nCorps, as the statute only explicitly authorizes suits against \xe2\x80\x9cthe Administrator\xe2\x80\x9d (EPA), and\nnot the Corps. While the Corps takes some actions regarding wetlands pursuant to its\nRivers and Harbors Act authority, that statute also does not have a provision authorizing\njudicial review of the Corps\xe2\x80\x99 actions. The only provision in either statute that expressly\nauthorizes judicial review of an action by EPA or the Corps is a provision, discussed later,\nthat authorizes review of administrative penalties imposed by EPA. See 33 U.S.C.\n\xc2\xa7 1319(g)(8).\nConsequently, persons seeking judicial review of actions of the Corps or EPA regarding\nwetlands usually must rely on the Administrative Procedures Act (APA). The APA provides\nthat a \xe2\x80\x9cfinal agency action for which there is no other adequate remedy in a court ..[is]\nsubject to judicial review\xe2\x80\x9d, see 5 U.S.C. \xc2\xa7 704, and \xe2\x80\x9c[a] person suffering legal wrong\nbecause of agency action, or adversely affected or aggrieved by agency action within the\nmeaning of a relevant statute, is entitled to judicial review thereof.\xe2\x80\x9d See 5 U.S.C. \xc2\xa7 702.\nSignificantly, the APA defines \xe2\x80\x9cagency action\xe2\x80\x9d to include a \xe2\x80\x9cfailure to act.\xe2\x80\x9d See 5 U.S.C.\n\xc2\xa7 551(13). The APA waives the government\xe2\x80\x99s sovereign immunity to the extent that the\nchallenger is seeking declaratory or injunctive relief. See 5 U.S.C. \xc2\xa7 702. While the APA\ndoes not grant jurisdiction to any court to hear the challenges that it makes reviewable,\nlitigants can usually rely on 28 U.S.C. \xc2\xa7 1331 (the general federal question jurisdiction\nstatute) or other general jurisdictional statutes to establish jurisdiction for their lawsuit. The\ngeneral federal question jurisdiction statute provides \xe2\x80\x9c[t]he district courts shall have original\njurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United\nStates.\xe2\x80\x9d Id.\nThus, persons who can demonstrate standing to sue, as discussed below, will generally be\nable to challenge actions of EPA or the Corps regarding wetlands in federal district court as\nlong as the action is a final agency action. In general, the Supreme Court has held that for\nan action to be final, it \xe2\x80\x9cmust mark the \xe2\x80\x98consummation\xe2\x80\x99 of the agency\xe2\x80\x99s decisionmaking\nprocess\xe2\x80\x9d (not be of a tentative or interlocutory nature) and \xe2\x80\x9cmust be one by which \xe2\x80\x98rights or\nobligations have been determined\xe2\x80\x99 or from which \xe2\x80\x98legal consequences will flow.\xe2\x80\x9d See\nBennett v. Spear, 520 U.S. 154,178 (1997).\na.\n\nPermitting Decisions\n\nOne might assume that a permit applicant could challenge the Corps\xe2\x80\x99 denial of a Section\n404 permit with prejudice or any unwanted conditions included in a Section 404\npermit issued by the Corps as a final agency action under the APA, but the Corps\xe2\x80\x99\nadministrative appeals regulations require permit applicants to appeal those decisions\nadministratively before suing in court. See 33 C.F.R. \xc2\xa7 331.12. If the Corps affirms the\ndenial of the permit or affirms the inclusion of the unwanted conditions when it makes a\n334\n\n\x0cdecision on the administrative appeal, the permit applicant can challenge those decisions in\ncourt at that time.\nPersons other than the permit applicant who want to challenge the Corps\xe2\x80\x99 decision to issue\na permit, deny a permit, or include conditions in the permit have no obligation to pursue any\nadministrative appeal process before suing in court because they have no right to appeal in\nthe administrative process. However, if they challenge the Corps\xe2\x80\x99 decision to issue or deny\na permit and the permit applicant is pursuing, or could still pursue, an administrative\nappeal, a court will likely conclude that the challenger cannot bring their lawsuit until the\nadministrative process has concluded, because the agency\xe2\x80\x99s decision is not \xe2\x80\x9cthe\n\xe2\x80\x98consummation\xe2\x80\x99 of the agency\xe2\x80\x99s decision-making process\xe2\x80\x9d and is not a final agency action.\nSee 33 C.F.R. \xc2\xa7 331.10 (identifying the final decision of the Corps in the event of an\nadministrative appeal).\nb.\n\nJurisdictional Determinations\n\nFor jurisdictional determinations, a preliminary jurisdictional determination (a decision\nthat there may be waters of the United States on a parcel of land) is likely not subject to\njudicial review because it is tentative and subject to further review and modification within\nthe agency. See 33 C.F.R. \xc2\xa7 331.2. An approved jurisdictional determination (a decision\nthat waters of the United States exist or do not exist on a parcel of land and outlining the\nextent of the jurisdictional waters) can be appealed administratively, and, for many years,\nEPA and the Corps argued that an approved jurisdictional determination that confirms the\npresence of \xe2\x80\x9cwaters of the United States\xe2\x80\x9d on property was not a final agency action that\ncould be challenged in court. Instead, they argued that persons could only challenge those\ndecisions in court after they applied for a permit and the Corps or EPA made a decision on\nthe permit. Their position was endorsed by the Fifth Circuit and the Ninth Circuit Courts of\nAppeals. See Belle Corp., L.L.C. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir.\n2014), Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th\nCir. 2008). The agencies did not, however, resist judicial review of an approved\njurisdictional determination that found that property did not contain \xe2\x80\x9cwaters of the United\nStates.\xe2\x80\x9d In those cases, the government\xe2\x80\x99s determination is not tentative and, in essence,\nauthorizes the landowner to move ahead with development projects without seeking a\nSection 404 permit. The landowner is unlikely to challenge that decision, but neighbors,\ncompetitors, interest groups and other third parties may challenge the decision. See\nGolden Gate Audubon Society v. United States Army Corps of Engineers, 717 F. Supp.\n1417 (N.D. Cal. 1988).\nWhile EPA and the Corps argued that approved jurisdictional determinations that confirm\nthe presence of \xe2\x80\x9cwaters on the United States\xe2\x80\x9d could not be challenged in court, in 2016, the\nSupreme Court held, in United States Army Corps of Engineers v. Hawkes Co., et al., 136\nS.Ct. 1807 (2016), that all approved jurisdictional determinations are \xe2\x80\x9cfinal agency actions\xe2\x80\x9d\nthat can be reviewed under the APA. Several factors influenced the Court in its decision.\n335\n\n\x0cSignificantly, the Corps\xe2\x80\x99 regulations define approved jurisdictional determinations as \xe2\x80\x9cfinal\nagency action\xe2\x80\x9d, see 33 C.F.R. \xc2\xa7 320.1(a)(6), and the determinations are binding on both\nthe Corps and EPA for five years. See EPA, Memorandum of Agreement: Exemptions\nUnder Section 404(F) of the Clean Water Act \xc2\xa7 VI-A (1989). Applying the Supreme Court\xe2\x80\x99s\ntwo part test for determining whether an action is a final agency action, the Hawkes Court\nfirst held that the agency action \xe2\x80\x9cmark[ed] the consummation of the agency\xe2\x80\x99s\ndecisionmaking process .. [and was] not of a merely tentative or interlocutory nature\xe2\x80\x9d\nbecause the Corps conceded that approved jurisdictional determinations met that\nrequirement. 136 S. Ct. at 1813-1814. The Court also concluded that approved\njurisdictional determinations met the second part of the test \xe2\x80\x93 that the agency action must\n\xe2\x80\x9cbe one by which rights or obligations have been determined, or from which legal\nconsequences will flow.\xe2\x80\x9d Id. at 1813. The Court reasoned that an approved jurisdictional\ndetermination that finds that property does not contain waters of the United States has legal\nconsequences for landowners because the determination binds the agencies for five years\nand creates a safe harbor from enforcement actions for the landowner for that period. Id. at\n1814. Similarly, the Court reasoned that an approved jurisdictional determination that finds\nthat property contains waters of the United States has legal consequences for the\nlandowner because it denies the landowner the safe harbor from enforcement actions. Id.\nat 1815.\nIn addition to arguing that approved jurisdictional determinations were not \xe2\x80\x9cfinal agency\nactions\xe2\x80\x9d, the Corps argued that they should not be reviewable under the APA because the\nAPA only authorizes review of final agency action if there are not other adequate\nalternatives to APA review in court. Id. The Corps argued that landowners could obtain\nreview of the Corps\xe2\x80\x99 determination either by \xe2\x80\x9cdischarg[ing] fill material without a permit,\nrisking an EPA enforcement action during which they can argue that no permit was\nrequired, or apply[ing] for a permit and seek[ing] judicial review if dissatisfied with the\nresults.\xe2\x80\x9d Id. The Court, however, concluded that neither alternative was adequate. First,\nthe Court indicated, \xe2\x80\x9cwe have long held [that] parties need not await enforcement\nproceedings before challenging final agency action where such proceedings carry the risk\nof \xe2\x80\x98serious criminal and civil penalties.\xe2\x80\x99\xe2\x80\x9d Id. Regarding the Corps suggestion that\nlandowners apply for a permit and challenge the agency\xe2\x80\x99s permit decision, the Corps noted\nthat \xe2\x80\x9cthe permitting process can be arduous, expensive and long\xe2\x80\x9d and would not alter the\nfinality of the approved jurisdictional determination or affect its suitability for judicial review.\nId. at 1815-1816.\nIn light of the Court\xe2\x80\x99s decision, the Corps issued a Regulatory Guidance Letter that\nconfirms that approved jurisdictional determinations can be challenged in court. See U.S.\nArmy Corps of Engineers, Jurisdictional Determinations, Regulatory Guidance Letter 16-01\n(Oct. 2016). Despite the Supreme Court\xe2\x80\x99s decision and the agency\xe2\x80\x99s change in policy, there\nhas not been a significant increase in the number of judicial challenges to approved\njurisdictional determinations by the Corps. See Amena H. Saiyid, Challenges to Corps\nWaters Findings Still a Trickle After Ruling, 48 Env. Reporter 355 (Feb. 24, 2017).\n336\n\n\x0cc.\n\nEnforcement actions and other agency actions\n\nRegarding other permitting decisions, when the Corps or EPA determines that an activity\ndoesn\xe2\x80\x99t qualify for a general permit or a permit exemption, the agencies argue that the\ndeveloper must apply for an individual permit and can only challenge the general permit or\nexemption determination judicially as part of a challenge to the agencies\xe2\x80\x99 ultimate decision\non the permit application. In Avella v. U.S. Army Corps of Engineers, 916 F.2d 721 (11th\nCir. 1990), the Eleventh Circuit affirmed a district court\xe2\x80\x99s finding that the Corps\xe2\x80\x99\ndetermination that a developer\xe2\x80\x99s activity was not authorized by a nationwide permit was not\na final agency action because the agency\xe2\x80\x99s decision did not have a binding legal effect on\nthe developer. If, however, the government determines that an activity qualifies for a\ngeneral permit or a permit exemption, the decision can generally be challenged in court at\nthat time, since the government\xe2\x80\x99s decisionmaking process is complete and has a similar\nbinding legal effect as the issuance of an individual permit. See Orleans Audubon Society\nv. Lee, 742 F.2d 901 (5th Cir. 1984).\nThere are many actions that EPA and the Corps take in administering Section 404 of the\nClean Water Act other than issuing or denying permits and making jurisdictional\ndeterminations. However, for all of those other actions, the road to the courthouse door is\nthe same as for the permitting and jurisdictional decisions. The agencies\xe2\x80\x99 actions are\nreviewable if they are final agency actions. Although the cases are fact-sensitive, this\nmeans that regulations adopted by the Corps or EPA will frequently be subject to APA\nchallenge as final agency actions, since they are legally binding and often have direct legal\neffect on challengers, while guidance documents and policy statements will not be subject\nto review, since they are not legally binding and don\xe2\x80\x99t have a direct legal effect. EPA\xe2\x80\x99s\nexercise of its Section 404(c) authority represents the consummation of the agency\xe2\x80\x99s\nprocedures and has the same legal effect on a landowner as the denial of a Section 404\npermit, so it will generally be judicially reviewable.\nIn the enforcement context, for many years, EPA and the Corps argued that cease and\ndesist orders and administrative enforcement orders issued by the agencies could not be\nchallenged because they were not final agency action and because the statute implicitly\nprecluded review of the orders. Several courts agreed with the agencies until the Supreme\nCourt issued the following decision.\n\n337\n\n\x0cResources for the Case\nSackett v. Environmental Protection\nAgency\n566 U.S. ___ (2012)\nJUSTICE SCALIA delivered the opinion of the\nCourt.\n\nUnedited opinion (From Justia)\nGoogle Map of all of the cases in the coursebook\nOral Argument audio (from the Oyez Project)\nEPA Compliance Order at issue\nAdministrative Record\nEPA Guidance Post-Sackett\nEPA News Release re: administrative order\nLocal media article re: the Sackett case\n\nWe consider whether Michael and Chantell Sackett may bring a civil action under the\nAdministrative Procedure Act * * * to challenge the issuance by the Environmental\nProtection Agency (EPA) of an administrative compliance order under \xc2\xa7 309 of the Clean\nWater Act, 33 U.S.C. \xc2\xa7 1319. The order asserts that the Sacketts\xe2\x80\x99 property is subject to the\nAct, and that they have violated its provisions by placing fill material on the property; and on\nthis basis it directs them immediately to restore the property pursuant to an EPA work plan.\nI\nThe Clean Water Act prohibits, among other things, \xe2\x80\x9cthe discharge of any pollutant by any\nperson\xe2\x80\x9d * * * without a permit, into the \xe2\x80\x9cnavigable waters,\xe2\x80\x9d* * * which the Act defines as \xe2\x80\x9cthe\nwaters of the United States\xe2\x80\x9d * * * . If the EPA determines that any person is in violation of\nthis restriction, the Act directs the agency either to issue a compliance order or to initiate a\ncivil enforcement action. \xc2\xa7 1319(a)(3). When the EPA prevails in a civil action, the Act\nprovides for \xe2\x80\x9ca civil penalty not to exceed [$37,500] per day for each violation.\xe2\x80\x9d * * *\n\xc2\xa7 1319(d). And according to the Government, when the EPA prevails against any person\nwho has been issued a compliance order but has failed to comply, that amount is increased\nto $75,000\xe2\x80\x94up to $37,500 for the statutory violation and up to an additional $37,500 for\nviolating the compliance order.\nThe particulars of this case flow from a dispute about the scope of \xe2\x80\x9cthe navigable waters\xe2\x80\x9d\nsubject to this enforcement regime. Today we consider only whether the dispute may be\nbrought to court by challenging the compliance order\xe2\x80\x94we do not resolve the dispute on the\nmerits. * * *\nThe Sacketts * * * own a 2/3-acre residential lot in Bonner County, Idaho. Their property\nlies just north of Priest Lake, but is separated from the lake by several lots containing\npermanent structures. In preparation for constructing a house, the Sacketts filled in part of\ntheir lot with dirt and rock. Some months later, they received from the EPA a compliance\norder. The order contained a number of \xe2\x80\x9cFindings and Conclusions,\xe2\x80\x9d including the following:\n\xe2\x80\x9c1.4 [The Sacketts\xe2\x80\x99 property] contains wetlands within the meaning of 33 C.F.R.\n\xc2\xa7 328.4(8)(b); the wetlands meet the criteria for jurisdictional wetlands in the 1987\n\xe2\x80\x98Federal Manual for Identifying and Delineating Jurisdictional Wetlands.\xe2\x80\x99\n\n338\n\n\x0c\xe2\x80\x9c1.5 The Site\xe2\x80\x99s wetlands are adjacent to Priest Lake within the meaning of 33 C.F.R.\n\xc2\xa7 328.4(8)(c). Priest Lake is a \xe2\x80\x98navigable water\xe2\x80\x99 within the meaning of section 502(7)\nof the Act, 33 U.S.C. \xc2\xa7 1362(7), and \xe2\x80\x98waters of the United States\xe2\x80\x99 within the meaning\nof 40 C.F.R. \xc2\xa7 232.2.\n\xe2\x80\x9c1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or\npersons acting on their behalf discharged fill material into wetlands at the Site.\n[They] filled approximately one half acre. . . . . .\n\xe2\x80\x9c1.9 By causing such fill material to enter waters of the United States, [the Sacketts]\nhave engaged, and are continuing to engage, in the \xe2\x80\x98discharge of pollutants\xe2\x80\x99 from a\npoint source within the meaning of sections 301 and 502(12) of the Act, 33 U.S.C.\n\xc2\xa7\xc2\xa7 1311 and 1362(12).. . . . .\n\xe2\x80\x9c1.11 [The Sacketts\xe2\x80\x99] discharge of pollutants into waters of the United States at the\nSite without [a] permit constitutes a violation of section 301 of the Act, 33 U.S.C.\n\xc2\xa7 1311.\xe2\x80\x9d App. 19\xe2\x80\x9320.\nOn the basis of these findings and conclusions, the order directs the Sacketts, among other\nthings, \xe2\x80\x9cimmediately [to] undertake activities to restore the Site in accordance with [an EPAcreated] Restoration Work Plan\xe2\x80\x9d and to \xe2\x80\x9cpro- vide and/or obtain access to the Site . . . [and]\naccess to all records and documentation related to the conditions at the Site . . . to EPA\nemployees and/or their designated representatives.\xe2\x80\x9d Id., at 21\xe2\x80\x9322, \xc2\xb6\xc2\xb62.1, 2.7.\nThe Sacketts, who do not believe that their property is subject to the Act, asked the EPA for\na hearing, but that request was denied. They then brought this action in the United States\nDistrict Court for the District of Idaho, seeking declaratory and injunctive relief. Their\ncomplaint contended that the EPA\xe2\x80\x99s issuance of the compliance order was \xe2\x80\x9carbitrary [and]\ncapricious\xe2\x80\x9d under the Administrative Procedure Act (APA) * * * and that it deprived them of\n\xe2\x80\x9clife, liberty, or property, without due process of law,\xe2\x80\x9d in violation of the Fifth Amendment.\nThe District Court dismissed the claims for want of subject- matter jurisdiction, and the\nUnited States Court of Appeals for the Ninth Circuit affirmed * * * . It concluded that the Act\n\xe2\x80\x9cpreclude[s] pre-enforcement judicial review of compliance orders,\xe2\x80\x9d * * * and that such\npreclusion does not violate the Fifth Amendment\xe2\x80\x99s due process guarantee * * * . We\ngranted certiorari. * * *\nII\nThe Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of\n\xe2\x80\x9cfinal agency action for which there is no other adequate remedy in a court.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 704. We consider first whether the compliance order is final agency action. There is no\ndoubt it is agency action, which the APA defines as including even a \xe2\x80\x9cfailure to act.\xe2\x80\x9d\n\xc2\xa7\xc2\xa7 551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our\n339\n\n\x0copinions establish. Through the order, the EPA \xe2\x80\x9c \xe2\x80\x98determined\xe2\x80\x99 \xe2\x80\x9d \xe2\x80\x9c \xe2\x80\x98rights or obligations.\xe2\x80\x99 \xe2\x80\x9d\nBennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Port of Boston Marine Terminal Assn.\nv. Re- deriaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). By reason of the order, the\nSacketts have the legal obligation to \xe2\x80\x9crestore\xe2\x80\x9d their property according to an agencyapproved Restoration Work Plan, and must give the EPA access to their property and to\n\xe2\x80\x9crecords and documentation related to the conditions at the Site.\xe2\x80\x9d App. 22, \xc2\xb62.7. Also,\n\xe2\x80\x9c\xe2\x80\x98legal consequences . . . flow\xe2\x80\x99 \xe2\x80\x9d from issuance of the order. Bennett, supra, at 178 (quoting\nMarine Terminal, supra, at 71). For one, according to the Government\xe2\x80\x99s current litigating\nposition, the order exposes the Sacketts to double penalties in a future enforcement\nproceeding.2 It also severely limits the Sacketts\xe2\x80\x99 ability to obtain a permit for their fill from\nthe Army Corps of Engineers * * *. The Corps\xe2\x80\x99 regulations provide that, once the EPA has\nissued a compliance order with respect to certain property, the Corps will not process a\npermit application for that property unless doing so \xe2\x80\x9cis clearly appropriate.\xe2\x80\x9d 33 C.F.R.\n\xc2\xa7 326.3(e)(1)(iv) (2011).3\nThe issuance of the compliance order also marks the \xe2\x80\x9c \xe2\x80\x98consummation\xe2\x80\x99 \xe2\x80\x9d of the agency\xe2\x80\x99s\ndecisionmaking process. Bennett, supra, at 178 (quoting Chicago & Southern Air Lines,\nInc. v. Waterman S. S. Corp., 333 U.S.103, 113 (1948)). As the Sacketts learned when they\nunsuccessfully sought a hearing, the \xe2\x80\x9cFindings and Conclusions\xe2\x80\x9d that the compliance order\ncontained were not subject to further agency review. The Government resists this\nconclusion, pointing to a portion of the order that invited the Sacketts to \xe2\x80\x9cengage in informal\ndiscussion of the terms and requirements\xe2\x80\x9d of the order with the EPA and to inform the\nagency of \xe2\x80\x9cany allegations [t]herein which [they] believe[d] to be inaccurate.\xe2\x80\x9d App. 22\xe2\x80\x9323,\n\xc2\xb62.11. But that confers no entitlement to further agency review. The mere possibility that an\nagency might reconsider in light of \xe2\x80\x9cinformal discussion\xe2\x80\x9d and invited contentions of\ninaccuracy does not suffice to make an otherwise final agency action nonfinal.\nThe APA\xe2\x80\x99s judicial review provision also requires that the person seeking APA review of\nfinal agency action have \xe2\x80\x9cno other adequate remedy in a court,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 704. In Clean\nWater Act enforcement cases, judicial review ordinarily comes by way of a civil action\nbrought by the EPA under 33 U.S.C.\xc2\xa7 1319. But the Sacketts cannot initiate that process,\nand each day they wait for the agency to drop the hammer, they accrue, by the\nGovernment\xe2\x80\x99s telling, an additional $75,000 in potential liability. The other possible route to\n2\n\n\xe2\x80\xa6We do not decide today that the Government\xe2\x80\x99s position is correct, but assume the\nconsequences of the order to be what the Government asserts.\n3\n\nThe regulation provides this consequence for \xe2\x80\x9cenforcement litigation that has been\ninitiated by other Federal . . . regulatory agencies.\xe2\x80\x9d 33 C.F.R. \xc2\xa7 326.3(e)(1)(iv) (2011). The\nGovernment acknowledges, however, that EPA\xe2\x80\x99s issuance of a compliance order is\nconsidered by the Corps to fall within the provision. * * * Here again, we take the\nGovernment at its word without affirming that it represents a proper interpretation of the\nregulation.\n340\n\n\x0cjudicial review\xe2\x80\x94applying to the Corps of Engineers for a permit and then filing suit under\nthe APA if a permit is denied\xe2\x80\x94will not serve either. The remedy for denial of action that\nmight be sought from one agency does not ordinarily provide an \xe2\x80\x9cadequate remedy\xe2\x80\x9d for\naction already taken by another agency. The Government, to its credit, does not seriously\ncontend that other available remedies alone foreclose review under \xc2\xa7 704. Instead, the\nGovernment relies on \xc2\xa7 701(a)(1) of the APA, which excludes APA review \xe2\x80\x9cto the extent\nthat [other] statutes preclude judicial review.\xe2\x80\x9d The Clean Water Act, it says, is such a\nstatute.\nIII\nNothing in the Clean Water Act expressly precludes judicial review under the APA or\notherwise. But in determining \xe2\x80\x9c[w]hether and to what extent a particular statute precludes\njudicial review,\xe2\x80\x9d we do not look \xe2\x80\x9conly [to] its express language.\xe2\x80\x9d Block v. Community\nNutrition Institute, 467 U.S. 340, 345 (1984). The APA, we have said, creates a\n\xe2\x80\x9cpresumption favoring judicial review of administrative action,\xe2\x80\x9d but as with most\npresumptions, this one \xe2\x80\x9cmay be overcome by inferences of intent drawn from the statutory\nscheme as a whole.\xe2\x80\x9d Id., at 349. The Government offers several reasons why the statutory\nscheme of the Clean Water Act precludes review.\nThe Government first points to 33 U.S.C. \xc2\xa7 1319(a)(3), which provides that, when the EPA\n\xe2\x80\x9cfinds that any person is in violation\xe2\x80\x9d of certain portions of the Act, the agency \xe2\x80\x9cshall issue\nan order requiring such person to comply with [the Act], or . . . shall bring a civil action [to\nenforce the Act].\xe2\x80\x9d The Government argues that, because Congress gave the EPA the\nchoice between a judicial proceeding and an administrative action, it would undermine the\nAct to allow judicial review of the latter. But that argument rests on the question-begging\npremise that the relevant difference between a compliance order and an enforcement\nproceeding is that only the latter is subject to judicial review. There are eminently sound\nreasons other than insulation from judicial review why compliance orders are useful. The\nGovernment itself suggests that they \xe2\x80\x9cprovid[e] a means of notifying recipients of potential\nviolations and quickly resolving the issues through voluntary compliance.\xe2\x80\x9d * * * It is entirely\nconsistent with this function to allow judicial review when the recipient does not choose\n\xe2\x80\x9cvoluntary compliance.\xe2\x80\x9d The Act does not guarantee the EPA that issuing a compliance\norder will always be the most effective choice.\nThe Government also notes that compliance orders are not self-executing, but must be\nenforced by the agency in a plenary judicial action. It suggests that Congress therefore\nviewed a compliance order \xe2\x80\x9cas a step in the deliberative process[,] . . . rather than as a\ncoercive sanction that itself must be subject to judicial review.\xe2\x80\x9d * * * But the APA provides\nfor judicial review of all final agency actions, not just those that impose a self-executing\nsanction. And it is hard for the Government to defend its claim that the issuance of the\ncompliance order was just \xe2\x80\x9ca step in the deliberative process\xe2\x80\x9d when the agency rejected the\nSacketts\xe2\x80\x99 attempt to obtain a hearing and when the next step will either be taken by the\n341\n\n\x0cSacketts (if they comply with the order) or will involve judicial, not administrative,\ndeliberation (if the EPA brings an enforcement action). As the text (and indeed the very\nname) of the compliance order makes clear, the EPA\xe2\x80\x99s \xe2\x80\x9cdeliberation\xe2\x80\x9d over whether the\nSacketts are in violation of the Act is at an end; the agency may still have to deliberate over\nwhether it is confident enough about this conclusion to initiate litigation, but that is a\nseparate subject.\nThe Government further urges us to consider that Congress expressly provided for prompt\njudicial review, on the administrative record, when the EPA assesses administrative\npenalties after a hearing, see \xc2\xa7 1319(g)(8), but did not expressly provide for review of\ncompliance orders. But if the express provision of judicial review in one section of a long\nand complicated statute were alone enough to over- come the APA\xe2\x80\x99s presumption of\nreviewability for all final agency action, it would not be much of a presumption at all.\n***\nFinally, the Government notes that Congress passed the Clean Water Act in large part to\nrespond to the inefficiency of then-existing remedies for water pollution. Compliance orders,\nas noted above, can obtain quick remediation through voluntary compliance. The\nGovernment warns that the EPA is less likely to use the orders if they are subject to judicial\nreview. That may be true\xe2\x80\x94but it will be true for all agency actions subjected to judicial\nreview. The APA\xe2\x80\x99s presumption of judicial review is a repudiation of the principle that\nefficiency of regulation conquers all. And there is no reason to think that the Clean Water\nAct was uniquely designed to enable the strong-arming of regulated parties into \xe2\x80\x9cvoluntary\ncompliance\xe2\x80\x9d without the opportunity for judicial review\xe2\x80\x94even judicial review of the question\nwhether the regulated party is within the EPA\xe2\x80\x99s jurisdiction. Compliance orders will remain\nan effective means of securing prompt voluntary compliance in those many cases where\nthere is no substantial basis to question their validity.\n***\nWe conclude that the compliance order in this case is final agency action for which there is\nno adequate remedy other than APA review, and that the Clean Water Act does not\npreclude that review. We therefore reverse the judgment of the Court of Appeals and\nremand the case for further proceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE GINSBURG, concurring.\nFaced with an EPA administrative compliance order threatening tens of thousands of\ndollars in civil penalties per day, the Sacketts sued \xe2\x80\x9cto contest the jurisdictional bases for\nthe order.\xe2\x80\x9d * * * \xe2\x80\x9cAs a logical prerequisite to the issuance of the challenged compliance\n342\n\n\x0corder,\xe2\x80\x9d the Sacketts contend, \xe2\x80\x9cEPA had to determine that it has regulatory authority over\n[our] property.\xe2\x80\x9d * * * The Court holds that the Sacketts may immediately litigate their\njurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that\nquestion. Whether the Sacketts could challenge not only the EPA\xe2\x80\x99s authority to regulate\ntheir land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and\nconditions of the compliance order, is a question today\xe2\x80\x99s opinion does not reach out to\nresolve. Not raised by the Sacketts here, the question remains open for another day and\ncase. On that understanding, I join the Court\xe2\x80\x99s opinion.\nQuestions and Comments\n1.\n\nFinal agency action: Would the Court have reached the same conclusion regarding\nthe finality of EPA\xe2\x80\x99s compliance order if the agency did not take the position that it\ncould double the penalties that it could recover in a judicial enforcement action by\nissuing a compliance order? Does the Court believe that EPA is likely to modify a\ncompliance order based on informal discussions with the alleged violator after the\norder is issued? If EPA routinely made such changes, should that affect the Court\xe2\x80\x99s\nconclusion?\n\n2.\n\nPreclusion of review: As noted in the Sackett opinion, while the APA includes a\npresumption that final agency actions are reviewable, it includes an exception to\nreviewability if statutes preclude review. See 5 U.S.C. \xc2\xa7 701(a)(1). As evidenced by\nthe Court\xe2\x80\x99s opinion in Sackett, the presumption in favor of reviewability is very\nstrong. Although it can be rebutted either expressly or implicitly, the Sackett Court\nwas unwilling to find that the Clean Water Act precluded judicial review of\ncompliance orders despite arguments based on the structure and purposes of the\nstatute.\n\n3.\n\nTerms of the Order: Did the Court hold that EPA\xe2\x80\x99s order was invalid and that the\nagency lacked jurisdiction over the wetlands at issue? If the Sacketts want to\nchallenge the restoration plan required by the order, or EPA\xe2\x80\x99s requirement that they\nprovide records to the agency, does the Court\xe2\x80\x99s opinion authorize them to raise\nthose challenges in court?\n\n4.\n\nJurisdictional determinations: Sackett involved judicial review of an EPA\ncompliance order. Would the rationale of the decision also apply to a preliminary or\napproved jurisdictional determination? Would they constitute final agency action,\nbased on the Court\xe2\x80\x99s analysis, or can they be distinguished?\n\n5.\n\nDue Process: Does the Court resolve the Sackett\xe2\x80\x99s due process claim? If so, how?\nIf not, why not? What sort of a hearing is required by due process? Could a hearing\nbefore an administrative tribunal suffice? Could a hearing after an initial decision by\nthe government suffice?\n343\n\n\x0c6.\n\nImpact of decision: How might the Court\xe2\x80\x99s decision affect how frequently EPA\nissues administrative compliance orders to address Section 404 violations, as\nopposed to using other enforcement tools? How might it impact the documentation\nthat EPA prepares in support of compliance orders? (Note, though, that EPA\nprepared a detailed administrative record supporting its determination that the\nSacketts were discharging fill material into wetlands that were regulated under the\nClean Water Act.)\nIs the Court\xe2\x80\x99s decision likely to accelerate resolution of disputes over Clean Water\nAct jurisdiction over waters of the United States or will it severely hamper\ngovernment enforcement efforts? Are there less stringent alternatives to\nadministrative compliance orders? Would they be subject to judicial review? At oral\nargument, Justice Scalia predicted, \xe2\x80\x9cThey\xe2\x80\x99ll just issue warnings is what they\xe2\x80\x99ll do.\xe2\x80\x9d\nSee Craig N. Johnston, Sackett: The Road Forward, 42 Envtl. L. 993 (2012); Albert\nFerlo & Tom Lindley, Practical Impacts of the Sackett Decision, 42 Envtl. L. 1009\n(2012); Richard E. Glaze Jr., A Detailed Look at the Effects of Sackett v. EPA on\nAdministrative Enforcement Orders, 42 Envtl. L. Rep. News & Analysis 11030 (Nov.\n2012).\n\n7.\n\nWaters of the United States: In a concurring opinion that is not reproduced above,\nJustice Alito chastised Congress and EPA for failing to provide concrete rules\noutlining the boundaries of federal jurisdiction over \xe2\x80\x9cwaters of the United States\xe2\x80\x9d and\ncalled for Congress to clarify the reach of the statute.\n\n8.\n\nNon-enforcement: The Sackett case involved an APA challenge to an EPA\nenforcement order. However, can a person who is upset because EPA or the Corps\nare not bringing an enforcement action against someone bring suit against the\nagencies based on the APA, since agency action can include a failure to act? See\n5 U.S.C. \xc2\xa7 701(a)(2); Heckler v. Chaney, 470 U.S. 821 (1985). Could they bring a\nsuit against EPA or the Corps for non-enforcement under the citizen suit provisions\nof the Clean Water Act, alleging that the agencies failed to perform a nondiscretionary duty? See Sierra Club v. U.S. Environmental Protection Agency, 268\nF.3d 898 (9th Cir. 2001).\n\n344\n\n\x0cHypotheticals\n1. Walt Pinkman recently observed Jessie White dumping several tons of dirt onto wetlands\non her property to build a new tennis court. He immediately contacted EPA, and the agency\nsent an investigator to her house to determine whether she was violating the Clean Water\nAct. After conducting an inspection of the property, the EPA investigator issued Jessie a\n\xe2\x80\x9cnotice of violation\xe2\x80\x9d under Section 309(a) of the Clean Water Act, which indicated that she\nwas discharging fill material into \xe2\x80\x9cwaters of the United States\xe2\x80\x9d and that she could potentially\nbe fined and ordered to restore the wetlands to their natural state. The notice was not,\nhowever, an administrative compliance order, and did not require her to take any immediate\naction. Can Jessie challenge the notice in court?\n2. Shortly after EPA issued the notice of violation, a representative of the Corps of Engineers\nvisited the property and issued a preliminary jurisdictional determination, finding that the\nwetlands on White\xe2\x80\x99s property may be \xe2\x80\x9cwaters of the United States\xe2\x80\x9d. Can Jessie challenge the\njurisdictional determination in court?\n3. When Jessie did not cease her wetland filling activities, EPA issued an administrative\ncompliance order, notifying her that she was discharging fill material into \xe2\x80\x9cwaters of the United\nStates\xe2\x80\x9d and ordering her to restore the wetlands pursuant to a restoration plan that was\nincluded in the order. Jessie will not challenge the agency\xe2\x80\x99s determination that the wetlands\non her property are \xe2\x80\x9cwaters of the United States\xe2\x80\x9d, but she would like to challenge the terms of\nthe restoration plan. Can Jessie challenge the terms of the restoration plan in court?\n4. Jessie ultimately applies for a Section 404 permit to authorize the construction of her tennis\ncourt, but the Corps of Engineers denies the permit application on the grounds that there are\npracticable alternatives to the project that would have less adverse impacts on the aquatic\nenvironment. Jessie does not appeal the permit denial administratively within the period in\nwhich appeals can be brought. Can Jessie challenge the permit denial in court if she can no\nlonger challenge it administratively?\n\n2.\n\nLimits on Judicial Review\n\nEven if a litigant can demonstrate that the action of the EPA or the Corps that they wish to\nchallenge is a final agency action, they may face some additional obstacles to bringing their\nlawsuit.\nA primary roadblock for some plaintiffs may be the standing requirement. In order to bring\nsuit, a plaintiff must demonstrate that (1) they have suffered, or imminently will suffer, an\ninjury that was caused by the action that they are challenging and which can be\nredressed by the relief that they are seeking in the lawsuit; and (2) the interest that they\nare suing to protect is arguably within the zone of interests sought to be protected by the\nstatute under which they are suing. See Bennett v. Spear, 520 U.S. 154 (1997). The first\nrequirement, the \xe2\x80\x9cinjury in fact\xe2\x80\x9d requirement, derives from Article III of the Constitution,\n345\n\n\x0cwhich limits the judicial role to resolving \xe2\x80\x9ccases or controversies.\xe2\x80\x9d For many years, the\nSupreme Court referred to the second requirement, the \xe2\x80\x9czone of interests\xe2\x80\x9d requirement, as\na prudential limit imposed on plaintiffs by courts based on concerns for a limited judicial role\nin a democratic society. Id. However, in Lexmark International, Inc. v. Static Control\nComponents, Inc., 134 S. Ct. 1377, 1387 (2014), the Court held that the \xe2\x80\x9czone of interests\xe2\x80\x9d\nanalysis should not be identified as a standing test, prudential or otherwise, and that the\ntest is not a jurisdictional test. According to the Court, the \xe2\x80\x9czone of interests\xe2\x80\x9d analysis still\napplies in cases involving challenges to agency actions, but the analysis focuses on the\nstatutory interpretation question of whether Congress authorized the plaintiff to bring the\ncause of action against the agency.\xe2\x80\x9d Id.\nWhen a permit applicant is challenging a permit denial, the conditions included in a permit,\nor an EPA veto of a permit, or a landowner is challenging a determination that their\nproperty contains waters of the United States, the challenger should have little trouble\ndemonstrating that they have standing to sue under that test. Normally, the permit denial or\nthe conditions in the permit will cause the applicant or landowner some economic injury that\ncan be avoided if the permit is granted or the conditions are removed or altered. Similarly, if\na landowner or permittee has been issued an enforcement order and can demonstrate that\nthe government\xe2\x80\x99s action is final agency action, they should usually be able to demonstrate\nthat they meet the requirements for standing. The order will likely cause them some\neconomic injury or other injury, which could be avoided if the order were rescinded.\nHowever, when neighboring landowners, competitors, or other third parties challenge the\ngovernment\xe2\x80\x99s decisions to issue permits, cover activities through general permits, exempt\nactivities from permitting requirements, or find that property does not contain waters of the\nUnited States, it may be more difficult to demonstrate the standing requirements. See, e.g.\nSave Ourselves v. U.S. Army Corps of Engineers, 958 F.2d 659 (5th Cir. 1992). The\nplaintiffs may not yet have suffered any injury and may have a difficult time proving that\nthey will be imminently injured in a concrete way by the government action or that the relief\nthat they are seeking will redress that injury. Similarly, when regulated entities, interest\ngroups, or other persons challenge regulations issued by the Corps or EPA, standing may\nbe an obstacle to suit.\nIn addition to the standing limitation, a plaintiff may find that their lawsuit against the EPA or\nthe Corps will be dismissed if it is not brought in a timely manner. While the Clean Water\nAct does not have a judicial review provision that establishes time limits for actions against\nEPA and the Corps relating to the Section 404 program, the general six year statute of\nlimitations for civil actions against the United States applies to those lawsuits. See 28\nU.S.C. \xc2\xa7 2401(a). That statute runs from the time the cause of action first arose. Id. There\nare more restrictive time limits for citizen suits against the government for failure to perform\na non-discretionary duty, but those time limits will be discussed in the citizen suit section of\nthis chapter, since there are few, if any, lawsuits that could be brought against EPA or the\nCorps for failure to perform a non-discretionary duty with regard to the Section 404\nprogram. There are also more restrictive time limits that apply to appeals of administrative\n346\n\n\x0cpenalty orders, but they will be discussed in the enforcement section of this chapter.\nEven if a plaintiff brings their lawsuit within the six year statute of limitations, a court may\ndismiss the action as untimely if the claims in the lawsuit are moot. For instance, in Vieux\nCarre Property Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991), the Fifth Circuit held that a\nlitigant\xe2\x80\x99s claim that the Corps did not comply with the National Environmental Policy Act\nwhen deciding to issue a section 404 permit was moot because the retail complex that was\nauthorized by the permit was substantially completed at the time of the lawsuit. Similarly, in\nSierra Club v. U.S. Army Corps of Engineers, 277 Fed. Appx. 170 (3d Cir. 2008), the Third\nCircuit held that a litigant\xe2\x80\x99s challenge to the Corps\xe2\x80\x99 issuance of a Section 404 permit was\nmoot when the plaintiff brought the challenge after 98% of the wetlands at issue were filled,\nstructures had been built for the project and mitigation had been completed.\n3\n\nStandards of Review and Remedies\n\nSince judicial challenges to actions of the Corps and EPA regarding wetlands will be\nbrought pursuant to APA authority, the judicial review provisions of the APA apply in those\nactions. In general, courts review the decisions of EPA and the Corps based on the record\nprepared by the agencies to support their decisions and the justifications articulated by the\nagencies for those decisions, and do not hold evidentiary hearings or gather new evidence.\nSee Preserve Endangered Areas of Cobb\xe2\x80\x99s History v. U.S. Army Corps of Engineers, 87\nF.3d 1242, 1246-1247 (11th Cir. 1996); Friends of the Earth v. Hintz, 800 F.2d 822, 828-829\n(9th Cir. 1986); Avoyelles Sportsmen\xe2\x80\x99s League v. Marsh, 715 F.2d 897, 907 (5th Cir. 1983).\nWhen reviewing the record prepared by the agencies, courts do not generally engage in de\nnovo review. Instead, they review the agencies\xe2\x80\x99 decisions under very deferential standards.\nThe judicial review provisions of the APA indicate that a reviewing court shall\n\xe2\x80\x9c(2) hold unlawful and set aside agency action, findings, and conclusions found to\nbe\n(A)\narbitrary, capricious, an abuse of discretion, or otherwise not in\naccordance with law;\n(B)\ncontrary to constitutional right, power, privilege, or immunity;\n(C)\nin excess of statutory jurisdiction, authority, or limitations, or\nshort of statutory right;\n(D)\nwithout observance of procedure required by law;\n(E)\nunsupported by substantial evidence in a case subject to\nsections 556 and 557 of this title or otherwise reviewed on the record\nof an agency hearing provided by statute; or\n(F)\nunwarranted by the facts to the extent that the facts are subject\nto trial de novo by the reviewing court.\xe2\x80\x9d\nSee 5 U.S.C. \xc2\xa7 706.\n347\n\n\x0cAs noted in earlier chapters, when a court reviews an agency\xe2\x80\x99s interpretation of a statute\nadopted through legislative rulemaking or in some other contexts, the court will apply the\nChevron analysis. See Chapter 4, supra. If the court is not reviewing an agency\xe2\x80\x99s\ninterpretation of a statute, it will normally review the agency\xe2\x80\x99s decision under the arbitrary\nand capricious standard, another deferential standard, and uphold the agency\xe2\x80\x99s decision\nas long as it is reasonable. As the Supreme Court has indicated, the arbitrary and\ncapricious standard of review \xe2\x80\x9cis a narrow one\xe2\x80\x9d and the \xe2\x80\x9ccourt is not empowered to\nsubstitute its judgment for that of the agency.\xe2\x80\x9d See Citizens to Preserve Overton Park, Inc.\nv. Volpe, 401 U.S. 402, 415 (1971).\nIf the reviewing court ultimately decides that an action taken by the Corps or EPA is\narbitrary and capricious, the court will usually set aside the decision and remand the matter\nto the agency to reconsider. On remand, the agency can resolve the matter differently than\nit did initially, but it is also free to make the same decision as it made initially, as long as it\naddresses the court\xe2\x80\x99s concerns and can support the decision as reasonable. See Securities\nand Exchange Commission v. Chenery, 332 U.S. 194 (1947).\nQuestions and Comments\n1.\n\nBeyond the record: While APA review of most actions of the Corps and EPA is\nlimited to the administrative record prepared by the agency, in rare situations, a\ncourt may take evidence if the record is incomplete or if there is a strong showing of\nbad faith or improper behavior.\n\n2.\n\nIntervention: Since the judicial review provisions of the Clean Water Act do not\napply to review of actions of the Corps or EPA regarding Section 404, intervention in\nlawsuits against the Corps and EPA is governed by the normal federal rules of civil\nprocedure. See Fed. R. Civ. P. 24.\n\nII.\n\nEnforcement\n\nResources\n\nEPA Citizen Violation Report Form\nThe Corps of Engineers and EPA share\nEPA IG report re: Enforcement\nenforcement authority over Section 404\nEPA Wetland Enforcement Web Page\nviolations under the Clean Water Act. In\nEPA Region 9 Wetlands Enforcement Web Page\n1989, the agencies entered into a\nEPA Enforcement Web Page\nMemorandum of Agreement to coordinate\ntheir enforcement activities. See U.S.\nEnvironmental Protection Agency & U.S.\nArmy Corps of Engineers, Memorandum of Agreement: Federal Enforcement for the\nSection 404 Program of the Clean Water Act (Jan. 19, 1989). Pursuant to the agreement, in\nmost cases, the Corps conducts initial investigations of Section 404 violations, making a\ndetermination of whether waters of the United States are present on the property where a\ndischarge occurred and whether there has been a violation of Section 404. Id. While the\n\n348\n\n\x0cCorps conducts most initial investigations, the memorandum provides that EPA will\nnormally be the lead enforcement agency for discharges where the violator does not have a\npermit, while the Corps will be the lead enforcement agency for discharges that violate a\nCorps permit. Id.\nAs noted in Chapter 4, supra, the prohibition on filling wetlands derives from Section 301 of\nthe Clean Water Act, which, when read in conjunction with Section 502 (the definition\nsection), prohibits the addition of a pollutant into navigable waters from a point source\nby a person unless the person is adding the pollutant in accordance with a Section 404\npermit or a Section 402 permit, and is complying with other requirements of the statute\nlisted in Section 301. See 33 U.S.C. \xc2\xa7 1311. Section 404 permits are issued to authorize\nthe discharge of dredged or fill material into navigable waters. See 33 U.S.C. \xc2\xa7 1344.\nThus, if the Corps or EPA bring an enforcement action against someone for filling wetlands\nwithout a Section 404 permit or in violation of a Section 404 permit, they have the burden\nof proving that there was an addition of a pollutant into navigable waters from a point\nsource by a person (to demonstrate a violation of section 301) and that there was a\ndischarge of dredged or fill material (to demonstrate that a Section 404 permit, rather than\na Section 402 permit, was required.) If the enforcement action is based on violation of the\nterms or conditions of a Section 404 permit, the government has the burden of proving that\nthe defendant violated the permit terms or conditions. If the defendant argues that a\nSection 404 permit is not required because the activity that caused the alleged violation\nwas exempt from the permit requirement or because it was covered by a general permit,\nthe defendant has the burden of proof.\nExcept in criminal enforcement proceedings, in making out the prima facie case, the\ngovernment does not have to prove that the defendant acted with a specific mental state.\nThe government merely has to prove that the defendant took the action that was prohibited\nby the Clean Water Act. See Kelly v. United States, 203 F.3d 519 (7th Cir. 2000); Stoddard\nv. Western Carolina Regional Sewer Authority, 784 F.2d 1200 (4th Cir. 1986). The statute\ndefines \xe2\x80\x9cperson\xe2\x80\x9d broadly to include an \xe2\x80\x9cindividual, corporation, partnership, association,\nState, municipality, commission, or political subdivision of a State, or any interstate body.\xe2\x80\x9d\nSee 33 U.S.C. \xc2\xa7 1362(5). EPA\xe2\x80\x99s regulations clarify that a Federal agency, its agents and\nemployees, and an \xe2\x80\x9cagent or employee\xe2\x80\x9d of any entity listed in the statutory definition can\nalso be liable as a \xe2\x80\x9cperson\xe2\x80\x9d. See 40 C.F.R. \xc2\xa7 232.2.\nThe enforcement process begins when EPA or the Corps learn about a potential section\n404 violation. The Corps encourages members of the public to report violations, see\n33 C.F.R. \xc2\xa7 326.3(a), so the government may become aware of violations from citizen\ncomplaints. In addition, the Corps works with state, local and other federal agencies to\nwatch for potential violations, so the Corps or one its partners may discover a violation\nthrough its surveillance program. Id. The Corps relies on those tools to identify violations of\npermit conditions as well as unpermitted discharges, because, unlike other environmental\nstatutes, the Clean Water Act does not require Section 404 permittees to monitor their\n349\n\n\x0cactivities or file periodic reports with the Corps. EPA has limited field resources and relies\non reports from citizens or referrals from the Corps or other federal agencies to identify\npotential violations. However, a 2009 report of EPA\xe2\x80\x99s Office of Inspector General found that\nthe agency\xe2\x80\x99s passive and reactive approach to wetlands enforcement was not effective in\nidentifying violations. See U.S. Environmental Protection Agency, Office of Inspector\nGeneral, 10-P-0009, EPA Needs a Better Strategy to Identify Violations of Section 404 of\nthe Clean Water Act (Oct. 6, 2009). Consequently, the Inspector General recommended\nthat the agency implement \xe2\x80\x9ca \xc2\xa7 404 enforcement strategy that includes increased\ncommunication/coordination with enforcement partners, a system to track repeat and\nflagrant violators, performance measures, and cross-training\xe2\x80\x9d and the agency agreed to\nmake those changes. Id. at 6.\nOnce the Corps or EPA discover a potential violation, they can choose from a broad range\nof administrative and judicial enforcement options, including both civil and criminal\nsanctions. The Clean Water Act gives the agencies broad discretion to choose the\nappropriate enforcement tool and does not mandate a specific type of enforcement action\nfor any particular violation.\nA.\n1.\n\nAdministrative Enforcement\nAdministrative Compliance\nOrders and Cease and Desist\nLetters\n\nResources\nCorps Enforcement Regulations\nEPA Enforcement Regulations\nEPA Region 9 Enforcement Web Page - incl.\ncompliance orders and consent decrees\nExample of an EPA compliance order\n\nMost violations will be resolved administratively, rather than in court. The least stringent\nenforcement tools available to the agencies are notices of violation and administrative\norders. The Clean Water Act authorizes EPA to issue orders (administrative compliance\norders) that require persons to comply with the Clean Water Act or with Section 404\npermits that are issued by States, see 33 U.S.C. \xc2\xa7 1319(a)(3), and authorizes the Corps to\nissue orders (cease and desist letters) that require persons to comply with the terms and\nconditions of Section 404 permits that the Corps issued. See 33 U.S.C. \xc2\xa7 1344(s). If a\npermittee has already completed the fill activity that violates a permit, the Corps will usually\nissue a notice of violation and request for remedial action, instead of a cease and desist\nletter. See 33 C.F.R. \xc2\xa7 326.3(c). When EPA issues an administrative compliance order or\nthe Corps issues a cease and desist letter, the agencies provide a copy of the order or\nletter to the state where the violation occurred and any other states affected by the\nviolation. See 33 U.S.C. \xc2\xa7\xc2\xa7 1319(a)(4); 1344(s)(2).\nIf the person who receives an order does not comply with the order, the agencies can only\nenforce the order by bringing an action in court, id. \xc2\xa7\xc2\xa7 1319(b); 1344(s)(3). As the Sackett\nCourt noted, in a judicial action to enforce an administrative order, the government will seek\n350\n\n\x0cto recover penalties for the violation of the order, as well as for the violation that led to the\nissuance of the order.\nAlthough the Clean Water Act does not explicitly authorize persons who receive\nadministrative compliance orders or cease and desist letters to challenge them in court, the\nSackett Court held that the recipient of an EPA administrative compliance order could\nchallenge the agency\xe2\x80\x99s jurisdictional determination in that order in court. The Court\xe2\x80\x99s\ndecision did not, however, address cease and desist letters of the Corps.\n2.\n\nAdministrative Penalty Orders\n\nResources\nEPA\xe2\x80\x99s Administrative Penalty Regulations\nCorps\xe2\x80\x99 Administrative Penalty Regulations\nEPA\xe2\x80\x99s Civil Penalty Policy\nEPA\xe2\x80\x99s Environmental Appeals Board\n\nBoth EPA and the Corps have authority\nto impose administrative penalties on\nviolators. Section 309(g) authorizes both\nagencies to assess civil penalties on\npersons who fill wetlands without a\npermit (or otherwise violate the Clean\nWater Act) or who violate the terms or conditions of a permit, although, as noted above, the\nCorps generally takes the lead on violations of permits issued by the Corps. See 33 U.S.C.\n\xc2\xa7 1319(g)(1). The statute establishes two categories of administrative penalties, based on\nthe severity of the violation. Class I penalties may not exceed $11,000 per violation or\n$32,500 overall, and Class II penalties may not exceed $11,000 per day of violation or\n$157,500 overall. See 33 U.S.C. \xc2\xa7 1319(g)(2); 40 C.F.R. \xc2\xa7 19.4. (Note: The original\nmaximum penalty amounts in the statute were lower, and were increased by the Debt\nCollection Improvement Act, 31 U.S.C. \xc2\xa7 3701).\nFor Class I penalties, the statute requires the government to provide notice and an\nopportunity for a hearing before assessing a penalty. See 33 U.S.C. \xc2\xa7 1319(g)(2)(A). The\nhearing is an informal hearing, though, and the statute only requires the government to\nprovide the potential recipient of the order \xe2\x80\x9ca reasonable opportunity to be heard and to\npresent evidence.\xe2\x80\x9d Id.\nFor Class II penalties, the statute requires the government to provide notice and the\nopportunity for a formal hearing following the procedures of the APA (5 U.S.C. \xc2\xa7 554)\nbefore assessing a penalty. See 33 U.S.C. \xc2\xa7 1319(g)(2)(B).\nIn determining the amount of the penalties, the statute directs the agencies to \xe2\x80\x9ctake into\naccount the nature, circumstances, extent and gravity of the violation, or violations, and,\nwith respect to the violator, ability to pay, any prior history of such violations, the degree of\nculpability, economic benefit or savings (if any) resulting from the violation, and such other\nmatters as justice may require.\xe2\x80\x9d Id. \xc2\xa7 1319(g)(3).\n\n351\n\n\x0cFor both types of penalties, the Corps or EPA must also provide public notice of the\nproposed penalty order and an opportunity to comment on the order before issuing the\norder. See 33 U.S.C. \xc2\xa7 1319(g)(4). Unlike administrative compliance orders, the statute\nexplicitly provides that persons who are assessed an administrative penalty or persons who\ncommented on the administrative penalty order can challenge the order in court, as long as\nthey challenge the order within 30 days. Id. \xc2\xa7 1319(g)(8). Class I penalties must be\nchallenged in federal district court, while Class II penalties must be challenged in the\nfederal appellate courts. Id. The general rules regarding judicial review, discussed above\n(i.e. review limited to the record, application of the arbitrary and capricious standard), apply\nto review of these orders. However, if the Class II penalties are issued after a formal\nhearing, the appellate court reviews the agency\xe2\x80\x99s factual findings under the substantial\nevidence test. See 5 U.S.C. \xc2\xa7 706(2)(E).\nBefore challenging an administrative penalty order in court, recipients of the orders must\nexhaust their administrative remedies. There is no administrative appeal process for Class I\npenalty orders, so recipients can challenge those orders immediately. However, recipients\nof a Class II penalty order must appeal the order administratively before challenging the\norder in court. See 40 C.F.R. \xc2\xa7 22.27(d).\nIf the Corps or EPA issues an administrative penalty order and the recipient does not\ncomply with the order, the Clean Water Act authorizes the government to bring an action in\nfederal district court to recover the penalties. See 33 U.S.C. \xc2\xa7 1319(g)(9). Significantly, in\nthat action, \xe2\x80\x9cthe validity, amount and appropriateness of ... [the] penalty shall not be subject\nto review.\xe2\x80\x9d Id.\nQuestions and Comments\n1.\n\nJury Trial: When courts review administrative penalty orders, they generally limit\nreview of the order to the record created by the agency and review the decision\nbased on the arbitrary and capricious standard. In Sasser v. Administrator, 990 F.2d\n127 (4th Cir. 1993), the Fourth Circuit rejected an argument that such a procedure\nviolated the order recipient\xe2\x80\x99s 7th Amendment right to a jury trial. The court concluded\nthat the case involved a dispute over \xe2\x80\x9cstatutory public rights,\xe2\x80\x9d to which the 7 th\nAmendment did not apply.\n\n2.\n\nCivil Penalty Policy: While the statute outlines criteria for EPA and the Corps to\nconsider in determining the amount of administrative penalties, EPA has also\ndeveloped a civil penalty policy to establish uniformity and consistency in calculating\nadministrative and judicial civil penalties for Clean Water Act Section 404 violations.\nSee U.S. Environmental Protection Agency, Issuance of Revised CWA Section 404\nSettlement Penalty Policy (Dec. 21, 2001). The policy identifies the minimum\namounts that the agency should recover in settlements, but acknowledges that the\nagency will seek and attempt to recover more if settlement is not possible. The\n352\n\n\x0cpolicy creates the following formula for determining the minimum civil penalty:\nPenalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity\nAdjustment Factors) - Litigation Considerations - Ability to Pay - Mitigation\nCredit for SEPs.\nId. at 8. Under the formula, EPA is primarily concerned with ensuring that the\nviolator does not receive any economic benefit by violating the statute. The agency\ncalculates the economic benefit using a computer model (BEN). Id. at 9. In\ncalculating and adjusting the \xe2\x80\x9cgravity\xe2\x80\x9d of the violation, the agency assigns numerical\nrankings to factors such as harm to human health or welfare, extent of impacts,\nseverity of impacts, duration of violation, degree of culpability, compliance history of\nthe violator, and the need for deterrence, among others. Id. at 9-15. After\ndetermining an appropriate penalty based on the economic benefit and gravity\nfactors, the agency may reduce the penalty that it is seeking based on litigation\nconsiderations (i.e. weaknesses in the case), the ability of the violator to pay, and\nthe violator\xe2\x80\x99s agreement to implement a supplemental environmental project (SEP).\nSEPs are \xe2\x80\x9cenvironmentally beneficial projects that a violator agrees to undertake as\npart of a settlement, but is not otherwise legally obligated to perform.\xe2\x80\x9d Id. at 20.\nThus, EPA may be willing to reduce the penalty it assesses a violator when the\nviolator agrees to take an environmentally beneficial action that the agency could\nnot have forced them to take otherwise.\n3.\n\nB.\n\nAfter the fact permits: In addition to the administrative options outlined above,\nwhen the Corps discovers an illegal discharge of dredged or fill material, it can issue\nan \xe2\x80\x9cafter the fact\xe2\x80\x9d permit to authorize the discharge, which protects the violator from\nfurther enforcement action. See 33 C.F.R. \xc2\xa7 326.3(e). As noted in Chapter 6, supra,\nthe illegal discharger must follow the normal permit application procedures, the\nCorps processes the application through the normal procedures for individual\npermits, and EPA retains the right to veto the permit. The Corps regulations provide,\nthough, that the Corps will not accept an after the fact permit application when the\ndistrict engineer determines that legal action is appropriate, or where federal, state\nor local regulatory agencies have\ninitiated litigation against the applicant.\nResources\nId.\nJudicial Enforcement - Civil and\nCriminal\n\nWhile the Corps and EPA will address most\nviolations through administrative processes,\nthey also have judicial enforcement tools, and\nthey do not have to pursue administrative\n353\n\nEPA Region 9 Wetlands Enforcement\nExample of a Wetlands Enforcement Consent\nDecree\nDOJ ENRD Proposed Consent Decrees (not\njust wetlands)\nEPA - Summary of Case Settlements (not\njust wetlands)\n\n\x0cremedies before seeking judicial relief. Similarly, they can pursue judicial relief even though\nthey have already pursued administrative remedies.\nThe Clean Water Act authorizes the government to seek a broad range of civil and criminal\npenalties for violations of the statute, although the Department of Justice brings the\nlawsuits on behalf of the agencies. While EPA\xe2\x80\x99s regulations do not indicate precisely the\nviolations that would motivate the agency to refer a case to the Department of Justice for\njudicial enforcement, the Corps\xe2\x80\x99 regulations suggest that appropriate cases for referral\ninvolve violations that are \xe2\x80\x9cwillful, repeated, flagrant, or of substantial impact.\xe2\x80\x9d See 33\nC.F.R. \xc2\xa7 326.5. In addition, in 1990, EPA and the Corps issued guidance regarding judicial\nenforcement priorities. See U.S. Army Corps of Engineers and U.S. Environmental\nProtection Agency, Guidance on Judicial Civil and Criminal Enforcement Priorities (Dec.\n1990). As part of that guidance, the agencies suggested that enforcement personnel should\nconsider the following factors when deciding whether to refer a case for civil enforcement:\n(1) quality of the waters affected; (2) impact of the discharge; (3) culpability of the violator;\n(4) deterrence value; (5) benefit from the violation; and (6) equitable considerations. Id.\n1.\n\nCivil Enforcement\n\nThe Clean Water Act authorizes EPA and the Corps to seek civil penalties and injunctive\nrelief for any violations of the Clean Water Act, the terms and conditions of any Section 404\npermit, or any administrative orders issued under the Act. See 33 U.S.C. \xc2\xa7\xc2\xa7 1319(b), (d);\n1344(s). The lawsuits must be brought in federal district court in the district in which the\ndefendant is located, resides, or does business, and the government must notify the state\nwhere the discharge occurs when the government files the suit. Id. The government will\nnormally refrain from filing suit if a state is pursuing an enforcement action, but the statute\ndoes not preclude federal enforcement simply because a state is also bringing an\nenforcement action.\nIn an enforcement action under the Clean Water Act, courts can award penalties up to\n$37,500 per day per violation. Id. Although the statute originally authorized a maximum\npenalty of $25,000 per day per violation, the amount has been increased over time in\naccordance with the Federal Civil Penalties Inflation Adjustment Act, 28 U.S.C. \xc2\xa7 2461, as\namended by the Debt Collection Improvement Act, 31 U.S.C. \xc2\xa7 3701. See 40 C.F.R.\n\xc2\xa7 19.4. The government takes the position, and several courts have agreed, that each day\nthat dredged or fill material remains in place constitutes a separate day of violation. See,\ne.g. United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166, 1183 (D. Mass.\n1986), aff\xe2\x80\x99d 826 F.2d 1151 (1st Cir. 1987), cert denied 484 U.S. 1061 (1988); United States\nv. Tull, 615 F. Supp. 610, 626 (E.D. Va. 1983), aff\xe2\x80\x99d 769 F.2d 182 (4th Cir. 1985), rev\xe2\x80\x99d on\nother grounds 481 U.S. 412 (1987). Under this \xe2\x80\x9ccontinuing violation\xe2\x80\x9d theory, therefore, if a\ndefendant illegally filled wetlands, the defendant would be subject to $37,500 penalties not\nonly for each day during which the filling occurred, but also for each day during which the\nfill remained in place.\n354\n\n\x0cJust as the statute outlines factors for the agencies to consider in determining an\nappropriate administrative penalty amount, the statute identifies a similar list of factors that\ncourts should consider in determining the amount of civil penalties. The statute directs\ncourts to consider the following factors in setting civil penalties: \xe2\x80\x9cthe seriousness of the\nviolation or violations, the economic benefit (if any) resulting from the violation, any history\nof such violations, any good-faith efforts to comply with the applicable requirements, the\neconomic impact of the penalty on the violator, and such other matters as justice may\nrequire.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7\xc2\xa7 1319(d); 1344(s). Since the factors outlined in the statute are\nsimilar for administrative and judicial penalties, the Department of Justice relies on the\nsame EPA civil penalty policy in judicial settlement negotiations as the agency relies on in\nadministrative settlement negotiations. Ultimately, the penalties that are recovered are paid\ninto the general fund of the United States Treasury, and are not paid to EPA, the Corps or\nthe Department of Justice.\nIn addition to civil penalties, the statute authorizes courts to award declaratory relief and\ntemporary and permanent injunctive relief. See 33 U.S.C. \xc2\xa7\xc2\xa7 1319(b), (d); 1344(s).\nPursuant to that authority, courts frequently order defendants to cease any discharging\nactivities, remove dredged or fill material, and to restore sites where dredged or fill material\nhas been discharged to their condition before the filling activity occurred. If restoration is\nnot possible, the government will normally seek appropriate mitigation.\nThe statute does not include a statute of limitations, so courts apply the general five year\nlimit on federal civil penalty actions to Clean Water Act civil penalty suits. See 28 U.S.C.\n\xc2\xa7 2462. However, courts have held that the statute does not begin to run until the\ngovernment becomes aware of the violation, see United States v. Hobbs, 736 F. Supp.\n1406 (E.D. Va. 1990), aff\xe2\x80\x99d 947 F.2d 941 (4th Cir. 1991), cert. denied 504 U.S. 940 (1992),\nand the statute does not apply to suits for injunctive relief, so courts can order defendants\nto cease prohibited activities, remove dredged or fill material, and restore wetlands, even\nthough the five year statutory time period for a civil penalty action has expired. See United\nStates v. Banks, 115 F.3d 916, 919 (11th Cir. 1997).\nAlthough most cases settle before trial, if a Clean Water Act enforcement action reaches\nthe trial stage, the Supreme Court has held that defendants have a constitutional right to a\njury trial in those actions. See Tull v. United States, 481 U.S. 412 (1987). However, the Tull\nCourt only held that defendants have a right to a jury trial on the issue of liability. Id. As a\nresult, the judge, rather than the jury, determines the appropriate remedy, regardless of\nwhether the remedy is a civil penalty or injunctive relief. In addition, if the government is\nonly seeking injunctive relief, there is no constitutional right to a jury trial, even on liability,\nsince the Seventh Amendment right is limited to actions at common law. See U.S. Const.,\nAmend. VII.\nAs noted above, in an enforcement action, the government has the burden of proving all of\n355\n\n\x0cthe elements of a Section 301/404 violation, while the defendant has the burden of proving\nany affirmative defenses. The statute does not identify specific affirmative defenses, but a\ndefendant might argue that their activity is exempt from the Section 404 permit requirement\nor is covered by a general permit. In addition, to the extent that a permittee is complying\nwith a Section 404 permit, including a general permit, the Clean Water Act provides that the\npermittee is complying with Sections 301, 307 and 403 of the Act, for purposes of federal\nenforcement actions and citizen suits. See 33 U.S.C. \xc2\xa7 1344(p).\nA defendant cannot avoid an enforcement action by arguing that the application of the\nClean Water Act constitutes a taking of their property. See United States v. Riverside\nBayview Homes, Inc., 474 U.S. 121 (1985). While the defendant can bring a separate\naction for a taking of property, see Chapter 11, infra, the claim is not a defense to an\nenforcement action.\nResearch Problems\nWhile DOJ makes pending consent decrees available online, once the decrees are finalized, it is more\ndifficult to search for them online. Consent decrees involving EPA are available on Lexis and on EPA\xe2\x80\x99s\nwebsite, as noted above. Consent decrees involving the Corps are not available on Lexis, Westlaw, or\nthe agency\xe2\x80\x99s website. Without using Lexis, please answer the following questions:\n1. In 2012, the U.S. and defendants resolved the case of United States v. Snowden, involving illegal fill\nof wetlands at Falls Creek Farm in Sterling, Connecticut, through a consent decree. What was the\namount of civil penalties that the defendants agreed to pay? What are the amounts of stipulated\npenalties that the parties agreed upon in the event that the defendants fail to timely fulfill requirements\nof the consent decree?\n2. Pursuant to the consent decree in United States v. Savoy Senior Housing Corporation, what is the\ntotal amount of money that the defendants agreed to pay as civil penalties and to fund the injunctive\nrelief required by the decree? Can representatives of the United States enter the defendants\xe2\x80\x99 property to\noversee the restoration activities under the consent decree?\n\n356\n\n\x0c2.\n\nCriminal Enforcement\n\nResources\nThe final, and most severe, enforcement\nSearch EPA Database of Criminal\nProsecutions\noption that the government can pursue is\nEPA Criminal Enforcement Web Page\ncriminal prosecution. The Clean Water\nAct authorizes criminal prosecution for\nnegligent violations, knowing violations,\nand knowing endangerment (placing\nsomeone in danger of death or injury). See 33 U.S.C. \xc2\xa7\xc2\xa7 1319(c)(1)-(3). For purposes of\ncriminal sanctions, the statute defines \xe2\x80\x9cperson\xe2\x80\x9d to include \xe2\x80\x9cresponsible corporate officers\xe2\x80\x9d.\nId. \xc2\xa7 1319(c)(6). The government normally refrains from bringing criminal enforcement\nactions unless the defendant\xe2\x80\x99s action caused significant environmental harm, the defendant\ncontinued to engage in illegal conduct after repeated warnings from the Corps or EPA, or\nthe defendant will receive significant economic benefit from continuing to violate the statute.\nConversely, when a person self-reports a violation, discovered a violation through an\nenvironmental audit, or implements compliance programs to improve compliance after\ndiscovering a violation, the government will be less likely to pursue a criminal action against\nthe person. See U.S. Department of Justice, Environment and Natural Resources Division,\nFactors in Decisions on Criminal Prosecutions for Environmental Violations in the Context\nof Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991). The\ngovernment generally prefers to prosecute high visibility cases, to maximize the deterrent\neffect of the prosecution.\nCourts can impose fines between $2,500 and $25,000 per day per violation and\nimprisonment up to one year for negligent violations of the Clean Water Act. Id. \xc2\xa7\n1319(c)(1). For knowing violations, courts can impose fines that are twice as high and\nimprisonment for up to three years. Id. \xc2\xa7 1319(c)(2). Finally, for knowing endangerment,\ncourts can impose fines up to $250,000 per violation (or $1,000,000 per violation for\norganizations) and imprisonment for up to fifteen years. Id. \xc2\xa7 1319(c)(3). In all cases, the\nmaximum penalties are doubled for violations committed after the defendant has been\npreviously convicted. See 33 U.S.C. \xc2\xa7\xc2\xa7 1319(c)(1)-(3). According to EPA\xe2\x80\x99s website, the\nmost significant criminal wetlands case involved the development of a subdivision that\nimpacted 260 acres. In that case, United States v. Lucas, 516 F.3d 316 (5th Cir. 2008), the\ncourt fined Robert Lucas Jr, his daughter and his engineer $15,000 each, assessed\nrestitution of $1,407,400 for each defendant, and fined Lucas\xe2\x80\x99 two companies $5,300,000.\nSee U.S. Environmental Protection Agency, Section 404 Enforcement.\nThe following case examines when courts will consider a violation to be a knowing\nviolation under the Clean Water Act.\n\n357\n\n\x0cUnited States v. Wilson\n133 F.3d 251 (4th Cir. 1997)\n\nResources for the Case\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\n\nNIEMEYER, Circuit Judge, writing for the\ncourt on parts I, II, V and VI:\nThe defendants in this case were convicted of felony violations of the Clean Water Act for\nknowingly discharging fill and excavated material into wetlands of the United States without\na permit. On this appeal they challenge: (1) the validity of federal regulations purporting to\nregulate activities that "could affect" interstate commerce; * * * [and] (4) the district court\'s\ninterpretation of the mens rea required for a felony conviction under the Act * * *\nBecause we conclude that 33 C.F.R. \xc2\xa7 328.3(a)(3) (1993) (defining waters of the United\nStates to include those waters whose degradation "could affect" interstate commerce) is\nunauthorized by the Clean Water Act as limited by the Commerce Clause and therefore is\ninvalid, and that the district court erred in failing to require mens rea with respect to each\nelement of an offense defined by the Act, we reverse and remand for a new trial.\nIn February 1996, after a seven-week trial, a jury convicted James J. Wilson, Interstate\nGeneral Co., L.P., and St. Charles Associates, L.P., on four felony counts charging them\nwith knowingly discharging fill material and excavated dirt into wetlands on four separate\nparcels without a permit, in violation of the Clean Water Act, 33 U.S.C. \xc2\xa7\xc2\xa7 1319(c)(2)(A) &\n1311(a). The district court sentenced Wilson to 21 months imprisonment and 1 year\nsupervised release and fined him $1 million. It fined the other two defendants $3 million and\nplaced them on 5 years probation. The court also ordered the defendants to implement a\nwetlands restoration and mitigation plan proposed by the government.\nWilson, a land developer with more than 30 years of experience, was the chief executive\nofficer and chairman of the board of directors of Interstate General. He was personally\nresponsible for various decisions relevant to the defendants\' convictions in this case.\nInterstate General was a publicly traded land development company with 340 employees,\n2,000 shareholders, and assets of over $100 million. It was the general partner of St.\nCharles Associates, a limited partnership that owned the land being developed within the\nplanned community of St. Charles, which lies between the Potomac River and the\nChesapeake Bay in Charles County, Maryland. The convictions involve discharges onto\nfour parcels that are part of St. Charles.\n***\nAt trial, the government introduced evidence that during the period from 1988 to 1993, the\ndefendants attempted to drain at least three of the four parcels of land involved in this case\nby digging ditches. The excavated dirt was deposited next to the ditches--a process known\n358\n\n\x0cas "sidecasting." The government also introduced evidence that the defendants transported\na substantial amount of fill dirt and gravel and deposited it on three of the parcels; only one\nparcel involved sidecasting without the addition of fill. The government presented evidence\nthat all four of these parcels contained wetlands and that the defendants failed to obtain\npermits from the Army Corps of Engineers * * * prior to making efforts to drain and fill the\nparcels.\nAlthough the parcels in question were not, because of neighboring development, located in\npristine wilderness areas, the government presented substantial evidence about the\nphysical characteristics which identified them as wetlands, including testimonial and\nphotographic evidence of significant standing water, reports of vegetation typical to\nhydrologic soils, and infrared aerial photographs showing a pattern of stream courses\nvisible under the vegetation. Evidence also showed that the properties were identified as\ncontaining wetlands on public documents including the National Wetlands Inventory Map\nand topographical maps of Charles County and the State of Maryland. The government\ndemonstrated that water from these lands flowed in a drainage pattern through ditches,\nintermittent streams, and creeks, ultimately joining the Potomac River, a tributary of the\nChesapeake Bay.\nThe government also produced evidence of the defendants\' awareness of the physical\nconditions of their land. The very development work underlying the present prosecution\ninvolved efforts to improve the drainage of the areas to make building feasible. Substantial\nfill was later added in an attempt to raise the ground level of the parcels. Some construction\nwork involved repeated reshoring efforts because of wetness-induced ground shifting and\ncollapse. Evidence was introduced that bids for work at one of the parcels actually\ncontained different price quotations for wet and dry work because of the level of moisture\non parts of the property. And witnesses gave testimony that despite the attempts at drying\nthe property through ditching and draining or through the pumping off of standing water,\nand even after hundreds of truck loads of stone, gravel and other fill had been added to\nthree of the parcels, wetland-loving plants continued to sprout through the fill.\nWitnesses also testified at trial that a private consulting firm retained by the defendants\ninformed the defendants that its observations of conditions on the parcels led it to conclude\nthat the parcels contained wetlands. The firm recommended seeking permits from the Army\nCorps of Engineers before beginning development. The defendants were also contacted by\nCharles County zoning authorities concerned about the possible presence of wetlands in\nthe vicinity of the new construction projects. Finally, the government presented evidence\nthat even as the defendants complied with an Army Corps of Engineers order to cease\nconstruction on one of the parcels and remove fill dirt that had already been added, they\ncontinued to develop the other parcels without notifying the Corps or making an effort to\nascertain whether a permit was necessary.\nThe defendants introduced contradictory evidence suggesting that whether the four parcels\n359\n\n\x0cwere wetlands under the Clean Water Act was unclear. They offered evidence which they\nclaim showed that the Army Corps of Engineers was inconsistent in asserting jurisdiction\nover the parcels in question, claiming that the Corps took action on only one parcel, even\nthough it had been aware for years of the ongoing development. Defendants also\nintroduced an internal Corps memorandum that stated that while the areas in the St.\nCharles community have the "necessary parameters ... to be considered wetlands when\nusing the Corps Wetland Delineation Manual," "it is not clear to me that these areas can be\ninterpreted as \'waters of the United States\' within the meaning or purview of Section 404."\nThat memo suggested obtaining guidance from higher authority as to what constitutes\n"waters of the United States." The defendants also introduced evidence indicating their\nbelief that they had legally drained three parcels prior to introducing fill, and that no fill was\ndischarged into the fourth which was being drained by the digging of ditches.\nFollowing 15 hours of deliberation, the jury convicted all defendants of the four felony\ncounts. Because of the felony convictions, the defendants were not convicted of four\nmisdemeanor counts for the "negligent" violations of the Clean Water Act involving the\nsame parcels.\n***\nV\nThe defendants * * * contend that the district court erred in instructing the jury about the\ncriminal intent, the "mens rea," required to prove a felony violation of the Clean Water Act.\nThey argue (1) that the statute requires a showing that they were aware of the illegality of\ntheir conduct, and (2) that the required mens rea, however it is defined, must accompany\neach element of the offense. They note that the district court\'s jury instructions comported\nwith neither requirement.\nThe district court charged the jury that the government must prove each of four elements of\nthe offense beyond a reasonable doubt:\nFirst, that is the defendant knowingly ... discharged or caused to be discharged a\npollutant.\nSecond, that the pollutant was [dis]charged from a point source.\nThird, that the pollutant entered a water of the United States; and fourth, that the\ndischarge was unpermitted.\nThe court defined an act as "knowingly" done "if it is done voluntarily and intentionally and\nnot because of ignorance, mistake, accident or other innocent reason." For each felony\ncount, the court stated,\n360\n\n\x0cthe government must prove that the defendants knew, one, that the areas which are\nthe subject of these discharges had the general characteristics of wetland; and, two,\nthe general nature of their acts. The government does not have to prove that the\ndefendants knew the actual legal status of wetlands or the actual legal status of the\nmaterials discharged into the wetlands. The government does not have to prove that\nthe defendants knew that they were violating the law when they committed their\nacts. (Emphasis added).\nFinally, the court instructed on willful blindness, which it stated could stand in the place of\nactual knowledge.\nDetermining the mens rea requirement of a felony violation of the Clean Water Act requires\nus to make an interpretation based on "construction of the statute and ... inference of the\nintent of Congress." * * * We thus begin our analysis by looking at the language of 33\nU.S.C. \xc2\xa7 1319, as well as its place in the larger statutory structure.\nSection 1319(c)(2)(A), making an illegal discharge of a pollutant a felony if accompanied by\nthe defined mens rea, provides: "Any person who knowingly violates section 1311 ... shall\nbe punished." (Emphasis added). Section 1311 makes unlawful "the discharge of any\npollutant" without a permit. And finally, \xc2\xa7 1362 defines "discharge of a pollutant" to include\n"any addition of any pollutant to navigable waters from any point source" and defines\n"navigable waters" as "waters of the United States." * * * Within that statutory structure, we\nmust determine the nature of intent that the statute requires for each element of the\noffense.\nOn a first reading of the clause, "any person who knowingly violates section 1311 shall be\npunished," the order of words suggests that "knowingly" modifies "violates" so that the\nclause imposes punishment only when one violates the statute with knowledge that he is\nviolating it, i.e. with knowledge of the illegality of his conduct. But the statute\'s structure, the\narchitecture of which includes a series of sections incorporating other sections, its\nlegislative history, and the body of Supreme Court jurisprudence addressing mens rea of\nfederal criminal statutes caution that our first reading may not so simply lead us to the\nproper interpretation.\nOur first concern is a pragmatic one engendered by the overall structure of the Clean Water\nAct. The conduct that is made criminal with the "knowingly violates" language\nencompasses numerous elements from other substantive statutory sections. See 33 U.S.C.\n\xc2\xa7 1319(c)(2)(A). Each of those substantive sections may also be enforced with other civil\nand criminal penalties if the actions proscribed therein are performed with different scienter.\nSee generally 33 U.S.C. \xc2\xa7 1319. If Congress intended that the "knowing" mens rea\naccompany each element of the offense, as we have previously assumed is the case, * * *\nthe task of inserting the alternative mens rea requirements for the multiple civil and criminal\n361\n\n\x0cenforcement provisions within each substantive prohibition would require confusingly\nrepetitious drafting. A shorthand method of accomplishing the same purpose thus would be\nto insert "knowingly" in a single place where the conduct is made criminal, in this case,\n\xc2\xa7 1319(c)(2)(A). See United States v. International Minerals & Chemical Corp., 402 U.S.\n558, 562 (1971) (the phrase "knowingly violates [applicable regulations]" was "a shorthand\ndesignation for specific acts or omissions which violate the act").\nOur second and more profound problem with our first-blush interpretative proposal arises\nfrom a recognition of two general common law principles regarding mens rea. First, in\nAnglo-American jurisprudence, criminal offenses are ordinarily required to have a mens\nrea. * * * This supposition is based on "the contention that an injury can amount to a crime\nonly when inflicted by intention." * * * Indeed, statutes requiring no mens rea are generally\ndisfavored. * * * But a second and deeply-rooted common law principle is that ignorance of\nthe law provides no defense to its violation. * * * Thus, while some level of deliberateness is\nusually required to impose criminal punishment, it is also usually true that the defendant\nneed not appreciate the illegality of his conduct. Applying those principles to a statute\nsimilar to the one before us, the Supreme Court in International Minerals declined "to\nattribute to Congress the inaccurate view that [the] Act requires proof of knowledge of the\nlaw, as well as the facts." * * * In that case, the statute--which provided that whoever\n"knowingly violates any such regulation" shall be fined or imprisoned--was held to be a\n"shorthand designation" for knowledge of the specific acts or omissions which violate the\nAct. * * * When so viewed, the Court noted, "the Act ... does not signal an exception to the\nrule that ignorance of the law is no excuse." * * * In light of these background rules of\ncommon law, we may conclude that mens rea requires not that a defendant know that his\nconduct was illegal, but only that he "know the facts that make his conduct illegal,"\n* * * unless Congress clearly specifies otherwise. And this knowledge must generally be\nproven with respect to each element of the offense. * * *\nFinally, our first-blush reading of the phrase "knowingly violates" is cast into doubt by the\nlegislative history, which suggests that Congress, by amending the statute in 1987,\nintended to facilitate enforcement of the Clean Water Act and increase the impact of\nsanctions by creating a separate felony provision for deliberate, as distinct from negligent,\nactivity. Before the amendment, the Act imposed a single set of criminal penalties for "willful\nor negligent" violations. See 33 U.S.C. \xc2\xa7 1319(d)(1) (1986). The 1987 amendments,\nhowever, segregated the penalties for negligent violations, making them misdemeanors,\nand added felony provisions for knowing violations. See 33 U.S.C. \xc2\xa7 1319(c)(1)(A)\n("negligent" violation) and \xc2\xa7 1319(c)(2)(A) ("knowing" violation). Thus, before 1987, the\nstatute proscribed "willful or negligent" violations and after 1987 it proscribed separate\n"knowing" and "negligent" violations. In changing from "willful" to "knowing," we should\nassume that Congress intended to effect a change in meaning. * * * Because "willful"\ngenerally connotes a conscious performance of bad acts with an appreciation of their\nillegality, * * * we can conclude that Congress intended to provide a different and lesser\nstandard when it used the word "knowingly." If we construe the word "knowingly" as\n362\n\n\x0crequiring that the defendant must appreciate the illegality of his acts, we obliterate its\ndistinction from the willfulness.\nBased upon these interpretative guides, then, we cannot conclude that Congress intended\nto require the defendant to know that his conduct was illegal when it stated that "Any\nperson who knowingly violates [incorporated statutory sections] ... shall be punished." The\nready alternative interpretation is that Congress intended that the defendant have\nknowledge of each of the elements constituting the proscribed conduct even if he were\nunaware of their legal significance. This interpretation would not carry with it the corollary\nthat the defendant\'s ignorance of his conduct\'s illegality provides him a defense, but would\nafford a defense for a mistake of fact. Thus, if a defendant thought he was discharging\nwater when he was in fact discharging gasoline, he would not be guilty of knowingly\nviolating the act which prohibits the discharge of pollutants. See United States v. Ahmad,\n101 F.3d 386, 393 (5th Cir.1996); see also International Minerals, 402 U.S. at 563-64 * * *\nAccordingly, we hold that the Clean Water Act * * * requires the government to prove the\ndefendant\'s knowledge of facts meeting each essential element of the substantive offense,\n* * * but need not prove that the defendant knew his conduct to be illegal * * * .\nIn light of our conclusion that the government need only prove the defendant\'s knowledge\nof the facts meeting each essential element of the substantive offense and not the fact that\ndefendant knew his conduct to be illegal, in order to establish a felony violation of the Clean\nWater Act, we hold that it must prove: (1) that the defendant knew that he was discharging\na substance, eliminating a prosecution for accidental discharges; (2) that the defendant\ncorrectly identified the substance he was discharging, not mistaking it for a different,\nunprohibited substance; (3) that the defendant knew the method or instrumentality used to\ndischarge the pollutants; (4) that the defendant knew the physical characteristics of the\nproperty into which the pollutant was discharged that identify it as a wetland, such as the\npresence of water and water-loving vegetation; (5) that the defendant was aware of the\nfacts establishing the required link between the wetland and waters of the United States;\nand (6) that the defendant knew he did not have a permit. This last requirement does not\nrequire the government to show that the defendant knew that permits were available or\nrequired. Rather, it, like the other requirements, preserves the availability of a mistake of\nfact offense if the defendant has something he mistakenly believed to be a permit to make\nthe discharges for which he is being prosecuted.\nWhile we thus reject the defendants\' challenge to the district court\'s instructions based on\nthe contention that the government must prove awareness of the illegality of their conduct,\nwe agree that the instructions did not adequately impose on the government the burden of\nproving knowledge with regard to each statutory element. For this reason, a new trial is\nrequired.\n\n363\n\n\x0cQuestions and Comments\n1.\n\nCompare the instructions given by the trial court regarding the prima facie case to\nthe instructions required by the appellate court. Do you understand the difference?\n\n2.\n\nMistake of fact v. mistake of law: Note that the Court suggests that a mistake of\nfact defense may still be available in a criminal prosecution for a wetlands violation,\neven though a mistake of law defense is not. If the wetlands at issue were not\nadjacent to a traditionally navigable water, could a defendant avoid criminal liability\nby providing evidence that the defendant was not aware that the wetlands had any\nconnection to other waters of the United States? What if the defendant was aware\nthat the wetlands were adjacent to a non-navigable stream, but the defendant did\nnot know that the stream had a \xe2\x80\x9csignificant nexus\xe2\x80\x9d to a traditionally navigable water?\n\n3.\n\nAdministrative orders and notice: The court notes that the defendants were\ncomplying with an administrative order from the Corps for filling wetlands at the\nsame time that they continued to discharge fill material on other wetlands on the\nproperty. One factor that may motivate the government to bring a criminal action is a\ndefendant\xe2\x80\x99s violation of an administrative order. However, if the defendant in Wilson\nwas not violating the order, do you understand why the issuance of the order is\nrelevant to the question of whether the defendant was \xe2\x80\x9cknowingly\xe2\x80\x9d violating the\nClean Water Act?\n\n4.\n\nStandard of proof: Note that the district court required the government to prove\neach element of the case beyond a reasonable doubt. In criminal prosecutions\nunder the Clean Water Act, all of the normal protections afforded to criminal\ndefendants apply.\n\n5.\n\nOther circuits: The Ninth Circuit interpreted the knowing requirement of the Clean\nWater Act in a manner similar to the Wilson court in a case that did not involve\ndischarges into wetlands. See United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir.\n1994). The Second Circuit adopted a similar reading of the statute, in another case\nthat didn\xe2\x80\x99t involve wetlands, but extended liability to persons who deliberately and\nconsciously avoided knowledge of the facts surrounding a violation. See United\nStates v. Hopkins, 53 F.3d 533 (2d Cir. 1995).\n\n6.\n\nPress coverage of criminal enforcement: While EPA limits criminal enforcement\nactions and tries to select high profile cases that will deter violators, criminal\nwetlands prosecutions can lead to bad press for EPA, regardless of the nature of the\ndefendant\xe2\x80\x99s actions. For instance, in the early 1990s, EPA brought a criminal\nprosecution against John Pozgai, a landowner who bought wetlands at a reduced\nprice, knowing that they were wetlands, and who filled 4 acres of wetlands with 400\ntruckloads of fill, flooding his neighbors properties, while ignoring cease and desist\n364\n\n\x0cletters from the Corps, as well as a temporary restraining order from federal district\ncourt. See Royal C. Gardner, Mitigation in Wetlands Law and Policy: Understanding\nSection 404 170 (American Bar Association, Section on Environment, Energy and\nResources 2005). Despite his conduct, the local press generally vilified the agency\nas jackbooted thugs unfairly prosecuting a Hungarian immigrant and violating his\nprivate property rights. Id.\n7.\n\nPublic involvement in settlement of enforcement actions: When DOJ settles\nenvironmental enforcement cases and prepares a consent decree, the Department\nprovides public notice of the consent decree and allows the public to comment on\nthe decree for 30 days. See 28 C.F.R. \xc2\xa7 50.7. Among other places, the proposed\nconsent decrees are available on the website for the Environment and natural\nResources Division of the Department. See U.S. Department of Justice,\nEnvironment and Natural Resources Division, Welcome to ENRD. Depending on the\ncomments, the Department may decide to withdraw from the settlement or proceed\nto file the order with the court. Id.\n\nInterview\nStephen Samuels, an Assistant Section Chief in the Environmental\nDefense Section of the Environment and Natural Resources Division of\nthe U.S. Department of Justice, explains how federal wetland\nenforcement priorities are set. (YouTube)\n\n365\n\n\x0cHypotheticals\n1. Oliver Douglas recently purchased 100 acres of farmland in Springfield, Iowa from Virgil\nHaney. Haney was aware that there were several prairie pothole wetlands on the property and\nhe did not farm on those sections of the property. However, he did not ever mention anything to\nDouglas about the wetlands. Douglas moved to Iowa from New York City and was unfamiliar\nwith farming or prairie potholes. At the time that he bought the property, there was no water in\nthe potholes and they did not look like wetlands to Douglas\xe2\x80\x99 untrained eye. Although the plants\nthat were growing in the wetlands were wetland plants, Douglas did not recognize them as such.\nSimilarly, he did not know that the water marks on a few trees near the wetlands were evidence\nof periodic innundation of the area. Since his wife, Lisa, was not pleased with the size of the\nsmall farmhouse on the property, Douglas hired a construction company to build an addition to\nthe house. When the construction company dug a new basement and foundation, Douglas\ndirected the company to dump the dirt from the construction into several depressional areas on\nthe property (the prairie potholes) to level them out. If EPA, upon learning about Douglas\xe2\x80\x99\nactivities, brought a criminal action against Douglas for \xe2\x80\x9cknowingly\xe2\x80\x9d violating Section 301 of the\nClean Water Act, could he likely be held liable for criminal fines and imprisonment?\n2. Assume that there was no continuous surface or groundwater connection between the prairie\npotholes in question 1 and any other traditionally navigable water, but that the potholes provided\nflood protection and filtered pollutants out of water that eventually flowed into the Springfield\nRiver, a traditionally navigable water. In addition, many tourists visited Springfield each fall to\nobserve migratory birds that relied on the potholes in the region as temporary habitat during\ntheir migration. If Douglas was aware that the potholes were wetlands, but was not aware of the\nconnections between the wetlands and the Springfield River or the migratory birds, and Douglas\ndirected the construction company to dump the dirt into the potholes, could he likely be held\ncriminally liable for \xe2\x80\x9cknowingly\xe2\x80\x9d violating Section 301 of the Clean Water Act?\n3. Assume that Douglas was aware that the potholes were wetlands and a representative of the\nCorps of Engineers visited his property while he was building the house and told him that he\ncould not dump the dirt from the construction into the wetlands. If Douglas\xe2\x80\x99 attorney incorrectly\ninformed him that the fill was authorized by a general permit that the Corps had issued and\nDouglas relied on that information, could he likely be held criminally liable for \xe2\x80\x9cknowingly\xe2\x80\x9d\nviolating Section 301 of the Clean Water Act?\n\n366\n\n\x0cHypothetical\nAs outlined above, the Federal government has many enforcement options when a person fills\nwetlands in violation of the Clean Water Act. The following hypothetical focuses on the choice of an\nappropriate enforcement tool.\nIn March 2008, Wilbur Dunphy contacted the Corps of Engineers because he planned to purchase\nproperty near Interstate 70 west of Columbia, Missouri to build a shopping center and he was\nconcerned that the construction might impact some wetlands on the property. Representatives of the\nCorps visited the site and verbally told Dunphy that the wetlands on the property were not\nconnected, in any way, to jurisdictional waters, and were not \xe2\x80\x9cwaters of the United States\xe2\x80\x9d that were\nregulated under the Clean Water Act. Although there were many other parcels of land available that\ndid not have any wetlands on them, Dunphy preferred the parcel that the Corps examined because\nit was located adjacent to an exit off the Interstate. If the wetlands on the parcel were \xe2\x80\x9cwaters of the\nUnited States,\xe2\x80\x9d it is unlikely that Dunphy would have been able to acquire a permit to authorize the\nshopping center construction.\nBased on the information that Dunphy received from the Corps, he bought the property and filled 50\nacres of wetlands to build the shopping center. Six years later, a local citizens group complained to\nEPA that the construction of the shopping center was contributing to pollution problems in the\nnearby Missouri River, a traditionally navigable water. Although the wetlands that were filled did not\nhave a continuous surface connection to the Missouri River, a series of ditches, gullies, and\nintermittent streams had connected the wetlands to the Missouri River. In fact, a few years before\nDunphy had contacted the Corps, and unbeknownst to the Corps, a Natural Resource Conservation\nService employee had examined the site and had collected data to demonstrate that the wetlands\ndecreased sedimentation, pollutants and flood waters to the Missouri River. Before the citizens\ngroup contacted EPA, the agency was not aware that any filling activity had taken place on\nDunphy\xe2\x80\x99s property. The citizens group believed that recent major floods near Columbia would not\nhave been as extreme if the wetlands had not been destroyed. The citizens group also believes that\nthe wetlands that were destroyed had provided habitat for several different species of endangered\namphibians, which were killed when the wetlands were converted.\nAt the same time that the citizens group complained to EPA about the filling activity, they\ncomplained to the Corps. A representative of the Corps met with the citizens group and, after\nreviewing the data collected by the Natural Resource Conservation Service employee, told the\nmembers of the citizens group that it is often difficult, after the Rapanos decision, to demonstrate\nthat wetlands adjacent to non-navigable waters are \xe2\x80\x9cwaters of the United States.\xe2\x80\x9d Nevertheless, the\nrepresentative of the Corps told the citizens group that she would explore enforcement options with\nmanagement at the District.\nThe shopping center is very profitable and is currently worth over $15 million. It is an economic hub\nfor the area and provides hundreds of jobs for local residents. It would be impossible to restore the\nwetlands on the property at this time without tearing down major portions of the shopping center.\nWhich agency, if any, should pursue an enforcement action at this time? If the Corps or EPA pursue\nan enforcement action, what relief should they seek? Should the agency pursue administrative\nremedies, judicial civil remedies, or judicial criminal remedies? What are the advantages and\ndisadvantages of each option?\n\n367\n\n\x0cC.\n\nCitizen Suits\n\nResources\nLike many federal environmental statutes,\nCWA citizen suit primer and model complaint the Clean Water Act anticipates that federal\nStack & Associates\nor state governments will take the lead in\nCitizens Guide to CWA Enforcement - Ohio\nenforcing the law, but allows citizens to file\nEnvironmental Council\nlawsuits to enforce the law in the absence of\nExample of CWA citizen suit complaints plaintiffs - Quad Cities Waterkeeper and\ngovernment enforcement. Thus, citizen suit\nResources for Sustainable Communities\nauthority serves multiple purposes. In some\ncases, the threat of a citizen suit may spur\nthe government to take enforcement action.\nIn other cases, citizen suits fill the\nenforcement gap when the government fails to take action against persons who violate the\nClean Water Act. The language of the citizen suit provision of the Clean Water Act is\nreproduced below:\n\nExcept as provided in subsection (b) of this section * * * any citizen may commence\na civil action on his own behalf\n(1) against any person (including (i) the United States, and (ii) any other\ngovernmental instrumentality or agency to the extent permitted by the eleventh\namendment to the Constitution) who is alleged to be in violation of (A) an effluent\nstandard or limitation under this chapter or (B) an order issued by the Administrator\nor a State with respect to such a standard or limitation, or\n(2) against the Administrator where there is alleged a failure of the Administrator\nto perform any act or duty under this chapter which is not discretionary with the\nAdministrator\n33 U.S.C. \xc2\xa7 1365(a).\n1.\n\nSuits allowed\n\nAs is apparent from the language above, the statute authorizes citizen suits in two types of\nsituations: (1) suits against anyone who violates an effluent standard or limit or\nadministrative order regarding an effluent standard or limit; and (2) suits against EPA for\nfailing to perform a non-discretionary duty. As noted above, there are few mandatory\nrequirements for EPA in the Clean Water Act Section 404 program, so there are very few\ncitizen suits based on that authority. Most of the Clean Water Act wetlands citizen suits are\nbrought under Section 505(a)(1), 33 U.S.C. \xc2\xa7 1365(a)(1), against persons who violate\neffluent standards or limits or orders related to those standards or limits.\n368\n\n\x0cFor purposes of the citizen suit provision, the Clean Water Act defines \xe2\x80\x9ceffluent standard\nor limitation\xe2\x80\x9d to include Section 401 certifications and actions that violate section 301(a) of\nthe Act, among other things. See 33 U.S.C. \xc2\xa7 1365(f)(1),(5). Thus, citizens can sue any\npersons who fill wetlands without a Section 404 permit, if one is required, since the\npersons would be violating an effluent standard or limitation by violating Section 301(a).\nWhile Section 505(a)(1) allows citizens to sue persons who fill wetlands without a permit,\nit is not clear that the provision authorizes them to sue persons who have a Section 404\npermit (including general permit) and who violate the terms or conditions of the permit.\nThe Clean Water Act explicitly defines \xe2\x80\x9ceffluent standard or limitation\xe2\x80\x9d to include a Section\n402 (NPDES) permit or conditions in a Section 402 permit, but it does not explicitly define\nthe term to include Section 404 permits, so some courts have held that citizens cannot\nsue persons who violate the terms or conditions of a Section 404 permit. See Atchafalaya\nBasinkeeper, et al. v. Chustz, 682 F.3d 356 (5th Cir. 2012); Northwest Environmental\nDefense Center v. U.S. Army Corps of Engineers, 118 F. Supp. 2d 1115 (D. Ore. 2000).\nSince the statute limits citizen suits to situations where persons are alleged to be in\nviolation, citizens cannot sue persons who violated the Clean Water Act in the past, but\nare no longer violating it at the time of the lawsuit. See Gwaltney of Smithfield, Ltd. v.\nChesapeake Bay Foundation, 484 U.S. 49, 64 (1987). The Supreme Court has interpreted\nthe \xe2\x80\x9calleged to be in violation\xe2\x80\x9d language to limit citizen suit jurisdiction to cases where the\nplaintiff can \xe2\x80\x9cmake a good faith allegation of continuous or intermittent violation\xe2\x80\x9d of an\neffluent standard or limit. Id. If the Clean Water Act violation challenged is not continuing or\nreasonably likely to recur after the date that the lawsuit is filed, courts will dismiss the\ncitizen suit. Id. However, to the extent that litigants advance, and courts are willing to\nembrace, the government\xe2\x80\x99s theory that each day that fill material remains in place\nconstitutes a separate day of violation, plaintiffs should be able to avoid the Gwaltney limit\nfor cases where the illegal fill remains in place.\nSection 505(a)(1) also clarifies that persons who can be sued for violating effluent\nstandards or limits include the United States, federal agencies, states and state agencies\n(subject to limits imposed by the 11th Amendment). However, the remedies available in\nthose citizen suits are limited. Plaintiffs can only obtain injunctive relief and \xe2\x80\x9ccoercive\xe2\x80\x9d\ncivil penalties (fines imposed to induce agencies to comply with injunctions or other\njudicial orders designed to modify behavior prospectively) and not \xe2\x80\x9cpunitive\xe2\x80\x9d civil penalties,\nwhen suing the federal government for filling wetlands without a permit. See Department of\nEnergy v. Ohio, 503 U.S. 607 (1992) (interpreting the citizen suit provisions of the Clean\nWater Act and the Resource Conservation and Recovery Act, but not involving Section 404\nviolations). Further, the 11th Amendment likely prevents plaintiffs from bringing citizen suits\nagainst states to recover civil penalties, see Seminole Tribe v. Florida, 517 U.S. 44 (1996)\n(finding that Congress can only abrogate state immunity if Congress unequivocally\nexpresses its intent to do so and acts pursuant to authority of the 14 th Amendment), but\nplaintiffs can probably bring citizen suits against state officials for injunctive relief (i.e.\n369\n\n\x0ccessation of filling activities or restoration of wetlands) when a state or state agency is\nillegally filling wetlands. See Ex Parte Young, 209 U.S. 123 (1908); Natural Resources\nDefense Council v. California Department of Transportation, 96 F.3d 420 (9th Cir. 1996).\n2.\n\nJurisdiction, Venue and Relief available\n\nThe Clean Water Act authorizes citizens to file their lawsuits in federal district court. See 33\nU.S.C. \xc2\xa7 1365(a). When the plaintiff is alleging that the defendant is violating an effluent\nstandard or limitation or an order regarding an effluent standard or limitation, the plaintiff\nmust bring the suit in the district in which the source of the violation is located. Id.\n\xc2\xa7 1365(c). The district courts can order persons violating effluent standards, limits, or\norders to comply with those requirements and can order the Administrator to perform nondiscretionary duties. Id. \xc2\xa7 1365(a). In addition, the court can impose civil penalties on the\ndefendant (subject to the limits discussed above for federal and state defendants). Id. As\nwith government enforcement, though, the civil penalties are paid into the general fund of\nthe United States Treasury and are not paid to the plaintiffs. The statute does not authorize\nthe court to award any damages to plaintiffs, and there is no implied right of action for\ndamages, so plaintiffs must rely on common law theories to recover any compensation for\npersonal injury, property damage or similar injuries. See Middlesex County Sewerage\nAuthority v. National Sea Clammers Association, 453 U.S. 1 (1981).\nThe statute also authorizes the court to award litigation costs, including reasonable\nattorneys fees and expert witness fees, to any prevailing or substantially prevailing\nparty whenever the court determines an award is appropriate. Id. \xc2\xa7 1365(d). In order to be\na prevailing or substantially prevailing party, the party seeking costs must have succeeded\non a significant issue in the litigation. See Public Interest Research Group of New Jersey,\nInc. v. Windall, 51 F.3d 1179 (3d Cir. 1995) (Clean Water Act case that didn\xe2\x80\x99t involve\nwetlands). Prior to 2001, many courts held that a plaintiff could recover attorneys fees as a\nprevailing party when their lawsuit acted as a catalyst for a voluntary change in the\ndefendant\xe2\x80\x99s conduct that achieved the outcome that the plaintiff desired to achieve in\nbringing the citizen suit. However, in Buckhannon Board and Care Home, Inc. v. West\nVirginia Department of Health and Human Resources, 532 U.S. 598 (2001), a case\ninvolving the Americans with Disabilities Act and the Fair Housing Amendments Act, the\nSupreme Court held that a party must secure a judgment on the merits or a court-ordered\nconsent decree, which can include a consent decree that enforces a settlement agreement,\nto recover attorneys\xe2\x80\x99 fees as a prevailing party.\n\n370\n\n\x0c3.\n\nLimits on citizen suits\nStanding\n\nSection 505(a) of the Clean Water Act authorizes any citizen to bring a citizen suit, and the\nstatute defines a citizen as \xe2\x80\x9ca person or persons having an interest which is or maybe\nadversely affected.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1365(g). While the statute authorizes a broad\ncategory of persons to sue, Congress cannot eliminate Article III standing requirements\nthrough legislation, so plaintiffs must still demonstrate that they have suffered or imminently\nwill suffer an injury that was caused by the Clean Water Act violation about which they are\nsuing and that the relief that they are seeking in the citizen suit (injunction, damages, etc.)\nwill redress their injury. See Friends of the Earth, Inc. v. Laidlaw Environmental Services,\n528 U.S. 167, 181-183 (2000) (noting that aesthetic injuries suffered by the plaintiff can\nsuffice, as can injuries suffered by the plaintiff that are caused by the plaintiff\xe2\x80\x99s reasonable\nconcerns that the defendant\xe2\x80\x99s conduct will cause harm). Depending on the facts of the\ncase, a plaintiff may have a difficult time demonstrating that they have already been injured\nby the defendant\xe2\x80\x99s conduct or that they will imminently be injured by the conduct, or that an\ninjunction or civil penalties will redress their injuries.\nAs noted above, in order to demonstrate standing, plaintiffs normally also must show that\ntheir interest in the litigation is arguably within the zone of interests sought to be protected\nby the statute under which they are suing. However, this prudential standing requirement\nis less problematic for plaintiffs in the Clean Water Act context than the Article III standing\n(injury in fact) requirement. It is less problematic because it is an easy test to meet in most\ncases. In Clarke v. Securities Industry Association, 479 U.S. 388, 399-400 (1987), the\nSupreme Court held that standing will be denied under that test only if the plaintiff\xe2\x80\x99s\ninterests are \xe2\x80\x9cso marginally related to or inconsistent with the purposes implicit in the\nstatute that it cannot reasonably be assumed that Congress intended to permit the suit.\xe2\x80\x9d In\nBennett v. Spear, 520 U.S. 154 (1997), the Supreme Court clarified that, in determining\nwhether the zone of interests test is met, the court examines the purpose of the section of\nthe statute under which the plaintiff is suing, rather than the general purposes of the\nstatute. Thus, in a citizen suit alleging violations of Section 404, the plaintiff would have to\ndemonstrate that their interests not simply marginally related to or inconsistent with the\npurposes of Section 404. When citizens are alleging environmental injuries caused by the\ndefendant\xe2\x80\x99s Section 404 violation, it is not difficult to demonstrate that the injuries are within\nthe zone of interests sought to be protected by Section 404. However, if the plaintiffs are\ncompetitors of the defendants and are alleging that they have suffered economic harm\ncaused by the violation, it may be more difficult to satisfy the zone of interest test.\nIt is likely, though, that the zone of interests test will not serve as a roadblock to citizen suits\nin any case because it probably does not apply at all in the Clean Water Act citizen suit\ncontext. Although Congress cannot eliminate Article III standing requirements through\nlegislation, the Supreme Court held, in Bennett v. Spear, 520 U.S. 154 (1997), that\n371\n\n\x0cCongress eliminated the \xe2\x80\x9czone of interest\xe2\x80\x9d requirement for citizen suits under the\nEndangered Species Act when it enacted a broadly worded citizen suit provision that\nauthorized any person to sue for violations of the statute. Since Section 505 also broadly\nauthorizes any citizen to sue, there is a strong argument available to plaintiffs that\nCongress eliminated the zone of interest requirement for citizen suits under the Clean\nWater Act, as well. However, in finding that the language of the Endangered Species Act\ncitizen suit provision was broad enough to demonstrate Congress\xe2\x80\x99 intent to eliminate the\n\xe2\x80\x9czone of interest\xe2\x80\x9d requirement for that statute, the Supreme Court pointed out that the\nlanguage was broader than the language used in other environmental statutes, specifically\ncontrasting the language of Section 505 of the Clean Water Act. Thus, it is possible that\nClean Water Act citizen suit plaintiffs may still need to satisfy the zone of interest test.\nNotice and Diligent Prosecution Bar\nAs noted above, citizen enforcement is designed to supplement, rather than replace,\ngovernment enforcement. Consequently, before a plaintiff can file a citizen suit, they must\nprovide, to the defendant, EPA, and the state where the violation is occurring, a notice of\ntheir intent to sue at least 60 days before filing suit. See 33 U.S.C. \xc2\xa7 1365(b). If they are\nsuing EPA for failure to perform a non-discretionary duty, they must provide EPA with\nnotice of their intent to sue at least 60 days before filing suit. Id. EPA has adopted\nregulations that further specify the content of the required notice, the manner in which it\nmust be served, and the persons to whom it must be directed. See 40 C.F.R. \xc2\xa7\xc2\xa7 135.1 135.3. If a plaintiff files their citizen suit without filing the required 60 day notice, the court\nwill dismiss the suit for lack of jurisdiction. See Hallstrom v. Tillamook County, 493 U.S. 20,\n26 (1989) (interpreting similar language in RCRA).\nIf a citizen files their notice of intent to sue a defendant for violating an effluent standard or\nlimitation or order regarding an effluent standard or limitation, and EPA or the state\ncommence and are diligently prosecuting a civil or criminal action in state or federal\ncourt to enforce the standard, limitation or order before the plaintiff files a citizen suit,\nthe plaintiff is precluded from filing suit. See 33 U.S.C. \xc2\xa7 1365(b). That limit is consistent\nwith the goal of the statute to establish the government as the primary enforcement\nauthority. The Clean Water Act also prohibits citizen suits when the Corps, EPA or States\nare diligently prosecuting administrative penalty proceedings.\xe2\x80\x9d See 33 U.S.C. \xc2\xa7 1319(g)(6).\nWhile courts are reluctant to find that the government is not diligently prosecuting a\nlawsuit if the government has commenced the lawsuit in court, there are cases where a\nplaintiff can prove lack of diligent prosecution. For instance, a Clean Water Act case that\ndidn\xe2\x80\x99t involve wetlands or Section 404 reached the Supreme Court when the district court\nallowed the citizen suit to go forward, finding that a state enforcement action was not being\ndiligently prosecuted because the defendant drafted the complaint against itself, drafted the\nsettlement agreement, filed the lawsuit against itself and paid the filing fee, and because\nthe agreement was entered into with \xe2\x80\x9cunusual haste\xe2\x80\x9d and provided for civil penalties that\nwere less than the economic benefit that the defendant received by violating the Clean\n372\n\n\x0cWater Act. See Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167\n(2000). The Laidlaw case is unusual, though, and judicial enforcement actions by\ngovernment usually will preclude citizen suits. If the plaintiff cannot bring a citizen suit\nbecause the government is diligently prosecuting an enforcement action, the statute\nauthorizes the citizen to intervene as of right in enforcement actions brought in federal\ncourt. See 33 U.S.C. \xc2\xa7 1365(b).\nWhile the statute bars citizen suits when the government is diligently prosecuting an\nenforcement action, if a plaintiff files a notice of intent to sue in accordance with the statute\nand neither the state nor the federal government commence a judicial enforcement action,\nthe plaintiff can file its citizen suit and can proceed with the suit even if the state or federal\ngovernment bring an enforcement action after the plaintiff files the citizen suit. The bar on\ncitizen suits in Section 505 only applies when the government brings enforcement actions\nbefore the plaintiff files suit. When the plaintiff brings a citizen suit, though, the Clean Water\nAct requires the plaintiff to serve a copy of the complaint on the Attorney General and EPA\nand authorizes EPA to intervene in the citizen suit as of right. See 33 U.S.C. \xc2\xa7 1365(c). In\naddition, the statute prohibits the court from entering a consent judgment in a citizen suit if\nthe United States isn\xe2\x80\x99t a party to the suit until 45 days after the Attorney General and EPA\nreceive a copy of the proposed consent judgment. Id. EPA\xe2\x80\x99s regulations provide more detail\nregarding the manner of service of the complaint and consent judgment. See 40 C.F.R.\n\xc2\xa7\xc2\xa7 135.4 - 135.5.\nInterview\nJan Goldman Carter, Senior Manager and Counsel for the National Wildlife\nFederation\'s Wetlands and Water Resources Program, discusses:\n1. the mission and structure of the National Wildlife Federation, and work\nthat the organization does to protect wetlands (YouTube).\n2. the role that litigation plays in protecting wetlands, and the manner in\nwhich the National Wildlife Federation chooses litigation priorities.\n(YouTube).\n\n373\n\n\x0cHypotheticals\nThe Griffin Heavy Equipment Company, which manufactures construction vehicles, recently broke\nground on a new factory in the suburbs of Seattle, Washington. Flanders Construction Company,\na competitor of Griffin, has most of its manufacturing facilities on the east coast, but hoped to open\na factory on the west coast and was in negotiations to acquire the property which Griffin eventually\nacquired. The city provided Griffin with significant tax incentives and Flanders has not been able to\nfind another suitable location in the state of Washington.\nWhile driving by the Griffin property in April of last year, Ed Flanders, the CEO of Flanders\nConstruction Company, noticed that Griffin was filling 20 acres of wetlands on the property to build\nthe factory. Ed Flanders was still upset that Griffin acquired the property that he wanted to acquire\nfor his factory, so he consulted his corporate counsel to see whether he could do anything to\n\xe2\x80\x9cmake life difficult\xe2\x80\x9d for Griffin.\nAfter speaking to his attorney and learning that Griffin did not have a permit authorizing the filling\nactivity, Flanders sent a letter to the Griffin Heavy Equipment Company, copying EPA and the\nWashington State Department of Ecology, indicating that Flanders intended to sue Griffin under\nSection 505(a)(1) of the Clean Water Act, because Griffin was violating Section 301 of the Clean\nWater Act by discharging fill material into navigable waters without a permit.\nA week later, Griffin completed the filling of wetlands and poured the concrete pad for the factory.\nFlanders waited another 3 months before taking any other action. Griffin did not engage in any\nadditional filling activities during that time and neither EPA nor the State of Washington took any\nadministrative, civil or criminal action against Griffin. Three and a half months after sending the\nletter to Griffin threatening a lawsuit, Flanders filed a citizen suit against Griffin under Section\n505(a)(1) of the Clean Water Act in the Federal District Court for the Eastern District of\nWashington, located in Spokane, Washington. Flanders felt that the judges in that court would be\nmore sympathetic to his case than the judges in the Western District, where the property was\nlocated.\nIn his complaint, Flanders alleged that he had an economic interest in bringing suit and would be\ninjured, as a competitor, because Griffin was able to lower its operating costs by building a factory\nwithout complying with the Clean Water Act. Flanders did not allege any interest in clean water or\nthe environment in his complaint. What defenses could Griffin raise in response to the complaint?\nWith what success? If EPA brought an enforcement action under Section 309 after Flanders sued,\nand EPA sought civil penalties, but did not seek restoration of the wetlands, could Flanders\nproceed with his suit?\n\n374\n\n\x0cDrafting Exercise\nYou have been retained by Friends of the Ocmulgee (\xe2\x80\x9cFriends\xe2\x80\x9d), a non-profit organization, to file\na citizen suit against Middle Georgia River Runners, Inc. (\xe2\x80\x9cMGRRI\xe2\x80\x9d), because MGRRI allegedly\ndischarged dredged or fill material into navigable waters without a Clean Water Act Section 404\npermit. Friends was incorporated in Georgia and has its headquarters at 12345 Sixth Street,\nMacon, Georgia, 31207. Their phone number is (478) 987-6543. MGRRI is a corporation that\nwas incorporated in Georgia, has its headquarters on River Road in Juliette, Georgia, 31046,\nand is doing business in Georgia.\nFriends was created to protect and advocate for the water quality of the Ocmulgee River and\nthe recreational use and enjoyment of the River. Friends has numerous members in Macon,\nJuliette, and Middle Georgia who live, work or travel along the Ocmulgee River and recreate\nin or near the River (by fishing, hiking, walking, photographing, plant gathering and boating).\nMGRRI operates a rafting tour business from its property on River Road, which is adjacent to\nthe Ocmulgee River. On October 10, 2014, members of Friends observed employees of\nMGRRI using a Caterpillar Backhoe Loader to clear \xc2\xbd acre of wetlands adjacent to the\nOcmulgee River on the River Road property. On the same day, they observed those\nemployees using the Backhoe Loader to add rock and soil to the wetlands to construct a\nparking lot for the rafting tour business. For purposes of this exercise, assume that the\nOcmulgee River is a tributary of an interstate water. MGRRI did not have a Section 404\npermit that authorized the clearing or filling of the wetlands. The fill material remains in place\ntoday.\nThe recreational, economic, aesthetic and/or health interests of Friends and its members\nhave been, are being, and will be adversely affected by MGRRI\xe2\x80\x99s violations of the Clean\nWater Act. The relief sought in the lawsuit will redress the injuries to those interests.\nFriends would like to bring a citizen suit against MGRRI under the Clean Water Act for a\ndeclaratory judgment that MGRRI is violating the Act, an injunction to require MGRRI to\nremediate the harm caused by the violation, imposition of civil penalties, an award of costs,\nincluding attorneys\xe2\x80\x99 fees and expert witness fees, and other appropriate relief.\n1. Draft the 60 day notice required by the Clean Water Act. EPA\xe2\x80\x99s regulations regarding the\nnotice requirements are codified at 40 C.F.R. \xc2\xa7\xc2\xa7 135.1 - 135.3. The materials included in the\n\xe2\x80\x9cResources\xe2\x80\x9d box at the beginning of the section of this Chapter that addresses \xe2\x80\x9cCitizen Suits\xe2\x80\x9d\nshould also be helpful in drafting the notice.\n2. Draft the complaint for the citizen suit. The materials included in the \xe2\x80\x9cResources\xe2\x80\x9d box,\nreferenced in the last question, should be helpful in drafting the notice. For purposes of this\nexercise, you do not need to conform the pleading to the local rules of the federal district court\nin which you will file the complaint. Remember to include the 60 day notice that you prepared\nin response to the last question as an attachment.\n\n375\n\n\x0cChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 10, why not try a CALI lesson on the material at:\nhttp://cca.li/Q1. It should take about 45 minutes.\n\n376\n\n\x0cChapter 11\nRegulatory Takings\nI. Background\nFrom the early days of the Clean Water Act Section 404 program through today, private\nproperty rights advocates have criticized government regulation of wetlands. Although the\nCorps denies very few Section 404 permit applications, over the years, several landowners\nhave challenged wetland permit denials as \xe2\x80\x9ctakings\xe2\x80\x9d of their property. In light of the fact that\nalmost 75% of the remaining wetlands in the lower 48 states are privately owned, the\ntakings issue is likely to remain an important consideration in the design and\nimplementation of wetlands protection programs.\nTo the extent that \xe2\x80\x9ctakings\xe2\x80\x9d claims arise regarding federal or state wetlands regulation, the\nclaims usually arise when the government\ndenies a permit to a landowner that would\nauthorize development in wetlands, although\nsome landowners have raised takings claims\nas soon as the government has asserted\njurisdiction over wetlands on their property.\nLandowners have also raised takings\nchallenges when the government issues a\npermit, but includes conditions or limits in the\npermit that the landowners oppose.\nTakings claims are based on the Fifth\nAmendment of the United States Constitution,\nwhich provides that private property shall not\nbe \xe2\x80\x9ctaken for public use, without just\ncompensation.\xe2\x80\x9d See U.S. Const., Amend. 5. Photo 35 By Ian Paterson\nWhile the Fifth Amendment provides the basis http://commons.wikimedia.org/wiki/File%3APriv\nfor takings claims against the Corps of ate_Property_-_geograph.org.uk_-_838016.jpg\n[CC-BY-SA-2.0]\nEngineers and other federal agencies, the\ntakings prohibition is also made applicable to states and state agencies through the Due\nProcess Clause of the Fourteenth Amendment of the Constitution. See Chicago, B. & Q. R.\nCo. v. Chicago, 166 U.S. 226 (1897).\n\n377\n\n\x0cAlthough early court decisions focused on physical invasion or appropriation of property by\ngovernment as takings, the Supreme Court has held, since 1922, that government\nregulation of property that restricts the use of the property can constitute a taking if the\nregulation \xe2\x80\x9cgoes too far.\xe2\x80\x9d See Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). At the\nsame time, though, Justice Holmes, writing for the Court, stressed that \xe2\x80\x9c[g]overnment\nhardly could go on if to some extent values incident to property could not be diminished\nwithout paying for every such change in the general law.\xe2\x80\x9d Id. at 413.\nFifty years later, the Court provided some guidance to help determine when government\nregulation \xe2\x80\x9cgoes too far,\xe2\x80\x9d so that is a taking. In Penn Central Transportation Company v.\nNew York City, 438 U.S. 104, 124 (1978), the Court eschewed adopting any bright line\nrules, but held that several factors are significant in evaluating whether government\nregulation constitutes a taking, including (1) the economic impact of the regulation on the\nclaimant; (2) the extent to which the regulation has interfered with investment-backed\nexpectations of the claimant; and (3) the character of the government action. Regarding\nthe character of the government action, the Court suggested that it was less likely that\ngovernment regulation would be a taking when the interference with private property rights\n\xe2\x80\x9carises from some public program adjusting the benefits and burdens of economic life to\npromote the common good.\xe2\x80\x9d Id. According to the Court, the three factor Penn Central test\nrequires an ad hoc, factual analysis in each case. Id. The Penn Central Court again\nstressed that the government is not required to pay for every reduction in property value\ncaused by regulation, but is only required to pay when the regulation \xe2\x80\x9cgoes too far.\xe2\x80\x9d Id. In\nHadacheck v. Sebastian, 239 U.S. 394 (1915), a case cited by the Penn Central Court, the\nSupreme Court upheld a law prohibiting the operation of a brickyard in a residential\nneighborhood against a taking challenge even though the regulation reduced the\nlandowner\xe2\x80\x99s property value by more than 90%.\nII.\n\nJurisdiction and Timing of Takings Claims\n\nAccording to the Tucker Act, takings claims against the United States must be brought in\nthe United States Court of Federal Claims if the plaintiff is seeking more than $10,000. See\n28 U.S.C. \xc2\xa7 1491. Takings claims for less than $10,000 can be brought in the federal\ndistrict courts. See 28 U.S.C. \xc2\xa7 1346. The Court of Federal Claims does not have\njurisdiction to adjudicate the validity of the Corps\xe2\x80\x99 denial or issuance of a Section 404\npermit, an EPA veto of a permit, or a jurisdictional determination by EPA or the Corps, so a\nlandowner who is seeking more than $10,000 in compensation for a taking based on those\nactions must bring two separate actions if they want to challenge the validity of the\nunderlying agency determination that is allegedly a taking. Decisions of the U.S. Court of\nFederal Claims can be appealed to the United States Court of Appeals for the Federal\nCircuit. Consequently, most of the takings jurisprudence developed outside of the Supreme\nCourt is developed in the Court of Federal Claims and the Federal Circuit.\nSince a court determining whether a government regulation constitutes a taking must\n378\n\n\x0cconduct an ad hoc factual analysis of the impact of the government regulation on the\nproperty, the Supreme Court has stressed that a takings claim \xe2\x80\x9cis not ripe until the\ngovernment entity charged with implementing the regulations has reached a final decision\nregarding the application of the regulations to the property at issue.\xe2\x80\x9d See Williamson\nCounty Regional Planning v. Hamilton Bank, 473 U.S. 172 (1985). In that case, the Court\nheld that a developer could not challenge, as a taking, a county planning commission\xe2\x80\x99s\ndecision to deny approval for a development proposal because the developer had not yet\nsought a variance that might have allowed the development to proceed. In the following\nyear, in McDonald et al v. County of Yolo, 477 U.S. 340, 351 (1986), the Court again\nstressed that a landowner cannot pursue a takings challenge based on the application of a\ngovernment regulatory program to its land until the landowner receives the government\xe2\x80\x99s\n\xe2\x80\x9cfinal, definitive position regarding how it will apply the regulations at issue to the particular\nland in question.\xe2\x80\x9d In McDonald, the Court determined that, even though the government\nhad denied the landowner\xe2\x80\x99s subdivision proposal, it was possible that the government\nwould approve a more limited subdivision proposal if the landowner sought approval, so the\nCourt could not determine the extent of the government interference with the landowner\xe2\x80\x99s\nproperty rights until the government identified a final, definitive position on the limits on the\ndevelopment of the property. Id.\nThere are, however, limits to this line of authority. In Palazzolo v. Rhode Island, 533 U.S.\n606, 620 (2001), the Supreme Court held that \xe2\x80\x9conce it becomes clear that the agency lacks\nthe discretion to permit any development, or the permissible uses of the property are known\nto a reasonable degree of certainty, a takings claim is likely to have ripened.\xe2\x80\x9d In that case,\nthe government argued that the plaintiff\xe2\x80\x99s takings challenge to regulation limiting the\ndevelopment of wetlands was unripe because the plaintiff had not submitted additional\ndevelopment proposals after three development proposals were rejected, but the Court\nconcluded that the plaintiff could pursue a takings claim because it was clear that the\ngovernment would not allow any development of the wetlands even if the plaintiff submitted\nanother development proposal. Id. Thus, if the limits that the government will ultimately\nplace on a landowner\xe2\x80\x99s property can be determined to a reasonable degree of certainty, the\nlandowner\xe2\x80\x99s taking claim will be ripe and they do not have to pursue variance procedures or\nadvance other development proposals that would be futile.\nIn light of ripeness concerns like those in the Williamson County and McDonald cases,\nlandowners are generally unable to bring takings challenges based on a preliminary or\napproved jurisdictional determination by the Corps or EPA. See United States v. Riverside\nBayview Homes, 474 U.S. 121 (1985). Since a landowner might still be able to obtain a\nSection 404 permit to develop their property after the government has determined that the\nproperty contains jurisdictional waters, it is not clear, at the time of the jurisdictional\ndetermination, what restrictions, if any, will be placed on the landowner\xe2\x80\x99s use of their\nproperty. Similarly, a landowner will generally not be able to challenge a cease and desist\norder or administrative compliance order as a taking, since the landowner may ultimately be\nable to engage in the prohibited development of their property if they seek and obtain a\n379\n\n\x0cSection 404 permit. See Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993).\nFor the same reasons, when the government determines that an activity is not exempt from\nthe Section 404 permit requirement or that an activity is not authorized by a general permit,\na landowner will generally be unable to challenge the government decision as a taking\nbecause the landowner may still apply for, and perhaps obtain, an individual Section 404\npermit. In each of the preceding scenarios in this paragraph, though, if it is clear that any\napplication for a Section 404 permit would be ultimately rejected, a landowner may be able\nto argue their takings challenge is ripe in light of the Palazzolo decision.\nOnce landowners apply for a permit and the Corps or EPA (though a veto) make a final\ndecision on the permit, it becomes easier for landowners to raise takings challenges,\nalthough some of those decisions may still not be ripe for a takings challenge. If the Corps\nhas issued a Section 404 permit to a landowner and the landowner wants to challenge the\nrestrictions placed on his property by the conditions included in the permit, the landowner\xe2\x80\x99s\nclaim is probably ripe for review, since the permit reflects the government\xe2\x80\x99s final definitive\napplication of the Clean Water Act regulatory program to the landowner\xe2\x80\x99s property.\nIf, however, a Section 404 permit application is withdrawn or denied \xe2\x80\x9cwithout prejudice\xe2\x80\x9d\nbecause the applicant did not provide all of the information required to process the permit\napplication or because the applicant was not able to obtain the necessary state or local\napprovals for the development project (i.e. State permit, 401 certification, CZMA\nconsistency, local zoning approval, etc.), the landowner will probably not be able to pursue\na takings claim against the Corps at that time. See Heck v. United States, 37 Fed. Cl. 245\n(1997). After all, it is not clear, at that time, whether the Corps would have issued a permit\nor included specific conditions in the permit if the applicant had obtained the other\nnecessary approvals. If the Corps, in denying the permit \xe2\x80\x9cwithout prejudice\xe2\x80\x9d, indicates that it\nwould have denied the permit anyway, though, a court may determine that a takings claim\nagainst the agency is ripe. See City National Bank v. United States, 33 Fed. Cl. 224 (1995).\nWhen the Corps denies a permit and does not deny it \xe2\x80\x9cwithout prejudice\xe2\x80\x9d, landowners are\nin the best position to pursue a ripe takings challenge. Although the Corps might argue that\nthe landowner must re-submit a less ambitious permit application before challenging the\ndenial as a taking, in light of the Williamson County and McDonald precedent, the Court of\nFederal Claims frequently rejects that argument, finding that additional permit applications\nwould be futile. See, e.g., Cristina Inv. Corp. v. United States, 40 Fed. Cl. 571 (1998); City\nNational Bank v. United States, 30 Fed. Cl. 715 (1994).\n\n380\n\n\x0cQuestions and Comments\n1.\n\nRipeness and Appeals: Pursuant to the Corps\xe2\x80\x99 regulations, permits denied with\nprejudice and declined permits can be appealed administratively and cannot be\nchallenged in court if they are not challenged administratively. See 33 C.F.R.\n\xc2\xa7 331.12. In light of those regulations, it is unclear whether the Court of Federal\nClaims will allow a landowner to pursue a takings challenge to a permit denial or\npermit conditions if the landowner has not exhausted its administrative remedies. If\nthe landowner has sought administrative review, though, the Court of Federal\nClaims will not review a takings claim until the Corps has made a final decision on\nthe appeal. See Bay-Houston Towing Co. v. United States, 58 Fed. Cl. 462 (2003).\n\n2.\n\nSwampbuster: Landowners have not generally brought takings claims based on a\ndenial of farm benefits due to the Swampbuster provisions of the Food Security Act.\nDo you understand why not?\n\n3.\n\nState Laws Providing Compensation for Diminution in Value: Although the\nSupreme Court has held that the government is not required to pay for every\nreduction in property value, but is only required to compensate landowners when\ngovernment regulation \xe2\x80\x9cgoes too far,\xe2\x80\x9d many states have passed laws that require\ngovernment entities to compensate landowners when government regulation\nreduces property values by a specific degree (i.e., 50%, 70%, etc.) See\nEnvironmental Law Institute, State Constraints: State-Imposed Limitations on the\nAuthority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean\nWater Act 20-23 (May 2013). The laws are not based on the federal or state\nconstitutions, but create additional limits on government regulation to protect \xe2\x80\x9cprivate\nproperty rights.\xe2\x80\x9d Many of the laws allow states to avoid paying compensation by\nwaiving the application of the regulation to the landowner challenging the\ngovernment action. Id. What impact might these laws have on federal or state\nregulation of wetlands?\n\n381\n\n\x0cHypotheticals\n1. Alex Pritchett owns an acre of land in Glynn County, Georgia. She would like to build a dock\non the property, which is primarily coastal wetlands, but the Corps of Engineers has just issued\nan approved jurisdictional determination, finding that the entire parcel of land is \xe2\x80\x9cwaters of the\nUnited States.\xe2\x80\x9d Without focusing on whether the Corps\xe2\x80\x99 action ultimately would be a taking, can\nshe bring a taking action in federal district court seeking $8,000 in damages (the amount that she\npaid for the property) based on the Corps\xe2\x80\x99 jurisdictional determination? If the Corps subsequently\ninforms her that her plans to build her dock on the property do not qualify for the regional general\npermit that the Corps district issued to authorize the construction of small docks, can she bring\nher takings lawsuit at that time? Would it make a difference if the Corps simultaneously told her\nthat she would never be able to build a dock on her property because any construction on her\nproperty would harm a sensitive breeding area for several species of snakes and rodents?\n2. Arthur Gomez applied to the Corps of Engineers for a Section 404 permit to fill 7 acres of\nwetlands on a 10 acre plot of land that he owned, so that he could develop the property as a\nresidential subdivision. When the State would not provide a Section 401 certification for his\nproposed development, the Corps denied his permit without prejudice, although they encouraged\nhim to submit a new application that would impact fewer acres of wetlands because they would\nnever approve a proposal to fill all 7 acres of wetlands on his property. Without focusing on\nwhether the Corps\xe2\x80\x99 action would ultimately be a taking, can he bring a taking action in federal\ndistrict court seeking $500,000 (the amount that he paid for the property)? Would your answer be\ndifferent if the State provided the Section 401 certification but the Corps denied the permit\napplication after the agency asked Gomez to submit a development proposal that would impact 5\nacres or less of wetlands on the property and Gomez refused? Should Gomez appeal the permit\ndenial administratively before bringing his takings claim?\n\nIII.\n\nThe Takings Analysis\n\nIn determining whether government regulation constitutes a taking, courts generally engage\nin an ad hoc, fact-sensitive analysis using the Penn Central analysis. However, the\nSupreme Court has established a few categorical rules that apply in takings cases. The\nfollowing case examines one of those rules. As additional background for the case, it is\nhelpful for the reader to know that, prior to this case, the Supreme Court held that a\nlandowner can recover compensation when a government regulation \xe2\x80\x9ctemporarily\xe2\x80\x9d takes\ntheir property, even though the regulatory restriction is later removed. See Tahoe Sierra\nPreservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002); First\nEnglish Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304\n(1987).\n\n382\n\n\x0cPhoto 36 By Cugirl (Own work)\nhttp://commons.wikimedia.org/wiki/File:Iop.jpg [Public domain]\n\nLucas v. South Carolina Coastal\nCouncil\n\nResources for the Case\nUnedited Opinion (From Justia)\nGoogle Map of all the cases in the coursebook\nOral argument (from the Oyez Project)\nPhotos, Documentary and Court Documents (from\nDuke Law - American Voices Project)\n\n505 U.S. 1003 (1992)\nJUSTICE SCALIA delivered the opinion of\nthe Court.\n\nIn 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of\nPalms in Charleston County, South Carolina, on which he intended to build single-family\nhomes. In 1988, however, the South Carolina Legislature enacted the Beachfront\nManagement Act, * * * which had the direct effect of barring petitioner from erecting any\npermanent habitable structures on his two parcels. * * * A state trial court found that this\nprohibition rendered Lucas\'s parcels "valueless." * * * This case requires us to decide\nwhether the Act\'s dramatic effect on the economic value of Lucas\'s lots accomplished a\ntaking of private property under the Fifth and Fourteenth Amendments requiring the\npayment of "just compensation." U.S. Const., Amend. 5.\nI\nA\nSouth Carolina\'s expressed interest in intensively managing development activities in the\nso-called "coastal zone" dates from 1977 when, in the aftermath of Congress\'s passage of\n383\n\n\x0cthe federal Coastal Zone Management Act of 1972, * * * the legislature enacted a Coastal\nZone Management Act of its own. * * * In its original form, the South Carolina Act required\nowners of coastal zone land that qualified as a "critical area" (defined in the legislation to\ninclude beaches and immediately adjacent sand dunes, * * * to obtain a permit from the\nnewly created South Carolina Coastal Council (Council) (respondent here) prior to\ncommitting the land to a "use other than the use the critical area was devoted to on\n[September 28, 1977]." * * *\nIn the late 1970\'s, Lucas and others began extensive residential development of the Isle of\nPalms, a barrier island situated eastward of the city of Charleston. Toward the close of the\ndevelopment cycle for one residential subdivision known as "Beachwood East," Lucas in\n1986 purchased the two lots at issue in this litigation for his own account. No portion of the\nlots, which were located approximately 300 feet from the beach, qualified as a "critical area"\nunder the 1977 Act; accordingly, at the time Lucas acquired these parcels, he was not\nlegally obliged to obtain a permit from the Council in advance of any development activity.\nHis intention with respect to the lots was to do what the owners of the immediately adjacent\nparcels had already done: erect singlefamily residences. He commissioned architectural\ndrawings for this purpose.\nThe Beachfront Management Act brought Lucas\'s plans to an abrupt end. Under that 1988\nlegislation, the Council was directed to establish a "baseline" connecting the landwardmost\n"point[s] of erosion ... during the past forty years" in the region of the Isle of Palms that\nincludes Lucas\'s lots. * * * In action not challenged here, the Council fixed this baseline\nlandward of Lucas\'s parcels. That was significant, for under the Act construction of\noccupable improvements2 was flatly prohibited seaward of a line drawn 20 feet landward of,\nand parallel to, the baseline. * * * The Act provided no exceptions.\nB\nLucas promptly filed suit in the South Carolina Court of Common Pleas, contending that the\nBeachfront Management Act\'s construction bar effected a taking of his property without just\ncompensation. Lucas did not take issue with the validity of the Act as a lawful exercise of\nSouth Carolina\'s police power, but contended that the Act\'s complete extinguishment of his\nproperty\'s value entitled him to compensation regardless of whether the legislature had\nacted in furtherance of legitimate police power objectives. Following a bench trial, the court\nagreed. Among its factual determinations was the finding that "at the time Lucas purchased\nthe two lots, both were zoned for single-family residential construction and ... there were no\nrestrictions imposed upon such use of the property by either the State of South Carolina,\n2\n\nThe Act did allow the construction of certain nonhabitable improvements, e. g., "wooden\nwalkways no larger in width than six feet," and "small wooden decks no larger than one\nhundred forty-four square feet."\n384\n\n\x0cthe County of Charleston, or the Town of the Isle of Palms." * * * The trial court further\nfound that the Beachfront Management Act decreed a permanent ban on construction\ninsofar as Lucas\'s lots were concerned, and that this prohibition "deprive[d] Lucas of any\nreasonable economic use of the lots, ... eliminated the unrestricted right of use, and\nrender[ed] them valueless." * * * The court thus concluded that Lucas\'s properties had been\n"taken" by operation of the Act, and it ordered respondent to pay "just compensation" in the\namount of $1,232,387.50. * * *\nThe Supreme Court of South Carolina reversed. It found dispositive what it described as\nLucas\'s concession "that the Beachfront Management Act [was] properly and validly\ndesigned to preserve ... South Carolina\'s beaches." * * * Failing an attack on the validity of\nthe statute as such, the court believed itself bound to accept the "uncontested ... findings"\nof the South Carolina Legislature that new construction in the coastal zone-such as\npetitioner intended-threatened this public resource. * * * The court ruled that when a\nregulation respecting the use of property is designed "to prevent serious public harm,"\n* * * (citing, inter alia, Mugler v. Kansas, 123 U.S. 623 (1887)), no compensation is owing\nunder the Takings Clause regardless of the regulation\'s effect on the property\'s value.\nTwo justices dissented. They acknowledged that our Mugler line of cases recognizes\ngovernmental power to prohibit "noxious" uses of property-i. e., uses of property akin to\n"public nuisances"-without having to pay compensation. But they would not have\ncharacterized the Beachfront Management Act\'s "primary purpose [as] the prevention of a\nnuisance." * * * To the dissenters, the chief purposes of the legislation, among them the\npromotion of tourism and the creation of a "habitat for indigenous flora and fauna," could\nnot fairly be compared to nuisance abatement. * * * As a consequence, they would have\naffirmed the trial court\'s conclusion that the Act\'s obliteration of the value of petitioner\'s lots\naccomplished a taking.\nWe granted certiorari. * * *\nIII\nPrior to Justice Holmes\'s exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393\n(1922), it was generally thought that the Takings Clause reached only a "direct\nappropriation" of property * * * or the functional equivalent of a "practical ouster of [the\nowner\'s] possession," * * * Justice Holmes recognized in Mahon, however, that if the\nprotection against physical appropriations of private property was to be meaningfully\nenforced, the government\'s power to redefine the range of interests included in the\nownership of property was necessarily constrained by constitutional limits. 260 U.S., at 414415. * * *\nNevertheless, our decision in Mahon offered little insight into when, and under what\ncircumstances, a given regulation would be seen as going "too far" for purposes of the Fifth\n385\n\n\x0cAmendment. In 70-odd years of succeeding "regulatory takings" jurisprudence, we have\ngenerally eschewed any "\'set formula\' " for determining how far is too far, preferring to\n"engag[e] in ... essentially ad hoc, factual inquiries." Penn Central Transportation Co. v.\nNew York City, 438 U.S. 104, 124 (1978) (quoting Goldblatt v. Hempstead, 369 U.S.\n590,594 (1962)). * * * We have, however, described at least two discrete categories of\nregulatory action as compensable without case-specific inquiry into the public interest\nadvanced in support of the restraint. The first encompasses regulations that compel the\nproperty owner to suffer a physical "invasion" of his property. * * *\nThe second situation in which we have found categorical treatment appropriate is where\nregulation denies all economically beneficial or productive use of land. See Agins v. City of\nTiburon, 447 U.S. 255, 260; see also Nollan v. California Coastal Comm\'n, 483 U.S. 825,\n834 (1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987);\nHodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 295-296 (1981).\n* * * As we have said on numerous occasions, the Fifth Amendment is violated when landuse regulation "does not substantially advance legitimate state interests or denies an owner\neconomically viable use of his land." Agins, supra, at 260 (citations omitted) (emphasis\nadded).7\n7\n\nRegrettably, the rhetorical force of our "deprivation of all economically feasible use" rule is\ngreater than its precision, since the rule does not make clear the "property interest" against\nwhich the loss of value is to be measured. When, for example, a regulation requires a\ndeveloper to leave 90% of a rural tract in its natural state, it is unclear whether we would\nanalyze the situation as one in which the owner has been deprived of all economically\nbeneficial use of the burdened portion of the tract, or as one in which the owner has\nsuffered a mere diminution in value of the tract as a whole. (For an extreme-and, we think,\nunsupportable-view of the relevant calculus, see Penn Central Transportation Co. v. New\nYork City, 42 N.Y.2d 324, 333-334, 366 N.E.2d 1271, 1276-1277 (1977), aff\'d, 438 U.S.\n104 (1978), where the state court examined the diminution in a particular parcel\'s value\nproduced by a municipal ordinance in light of total value of the takings claimant\'s other\nholdings in the vicinity.) Unsurprisingly, this uncertainty regarding the composition of the\ndenominator in our "deprivation" fraction has produced inconsistent pronouncements by the\nCourt. Compare Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922) (law restricting\nsubsurface extraction of coal held to effect a taking), with Keystone Bituminous Coal Assn.\nv. DeBenedictis, 480 U.S. 470, 497-502 (1987) (nearly identical law held not to effect a\ntaking); see also id., at 515-520 (REHNQUIST, C. J., dissenting); * * * The answer to this\ndifficult question may lie in how the owner\'s reasonable expectations have been shaped by\nthe State\'s law of property-i. e., whether and to what degree the State\'s law has accorded\nlegal recognition and protection to the particular interest in land with respect to which the\ntakings claimant alleges a diminution in (or elimination of) value. In any event, we avoid this\ndifficulty in the present case, since the "interest in land" that Lucas has pleaded (a fee\nsimple interest) is an estate with a rich tradition of protection at common law, and since the\nSouth Carolina Court of Common Pleas found that the Beachfront Management Act left\n386\n\n\x0cWe have never set forth the justification for this rule. Perhaps it is simply, as Justice\nBrennan suggested, that total deprivation of beneficial use is, from the landowner\'s point of\nview, the equivalent of a physical appropriation. See San Diego Gas & Electric Co. v. San\nDiego, 450 U.S., at 652 (dissenting opinion). "[F]or what is the land but the profits\nthereof[?]" 1 E. Coke, Institutes, ch. 1, \xc2\xa7 1 (1st Am. ed. 1812). Surely, at least, in the\nextraordinary circumstance when no productive or economically beneficial use of land is\npermitted, it is less realistic to indulge our usual assumption that the legislature is simply\n"adjusting the benefits and burdens of economic life," Penn Central Transportation Co., 438\nU.S., at 124, in a manner that secures an "average reciprocity of advantage" to everyone\nconcerned, Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415. And the functional basis for\npermitting the government, by regulation, to affect property values without compensationthat\n"Government hardly could go on if to some extent values incident to property could\nnot be diminished without paying for every such change in the general law,"\nid., at 413 - does not apply to the relatively rare situations where the government has\ndeprived a landowner of all economically beneficial uses.\nOn the other side of the balance, affirmatively supporting a compensation requirement, is\nthe fact that regulations that leave the owner of land without economically beneficial or\nproductive options for its use-typically, as here, by requiring land to be left substantially in\nits natural state-carry with them a heightened risk that private property is being pressed into\nsome form of public service under the guise of mitigating serious public harm. See, e. g.,\nAnnicelli v. South Kingstown, 463 A.2d 133, 140-141 (R.I. 1983) (prohibition on\nconstruction adjacent to beach justified on twin grounds of safety and "conservation of open\nspace"); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N.J.\n539, 552-553, 193 A.2d 232, 240 (1963) (prohibition on filling marshlands imposed in order\nto preserve region as water detention basin and create wildlife refuge). As Justice Brennan\nexplained:\n"From the government\'s point of view, the benefits flowing to the public from\npreservation of open space through regulation may be equally great as from\ncreating a wildlife refuge through formal condemnation or increasing electricity\nproduction through a dam project that floods private property."\nSan Diego Gas & Elec. Co., supra, at 652 (dissenting opinion). The many statutes on the\nbooks, both state and federal, that provide for the use of eminent domain to impose\nservitudes on private scenic lands preventing developmental uses, or to acquire such lands\neach of Lucas\'s beachfront lots without economic value.\n387\n\n\x0caltogether, suggest the practical equivalence in this setting of negative regulation and\nappropriation. * * *\nWe think, in short, that there are good reasons for our frequently expressed belief that\nwhen the owner of real property has been called upon to sacrifice all economically\nbeneficial uses in the name of the common good, that is, to leave his property economically\nidle, he has suffered a taking.8\n\n8\n\nJUSTICE STEVENS criticizes the "deprivation of all economically beneficial use" rule as\n"wholly arbitrary," in that "[the] landowner whose property is diminished in value 95%\nrecovers nothing," while the landowner who suffers a complete elimination of value\n"recovers the land\'s full value." Post, at 1064. This analysis errs in its assumption that the\nlandowner whose deprivation is one step short of complete is not entitled to compensation.\nSuch an owner might not be able to claim the benefit of our categorical formulation, but, as\nwe have acknowledged time and again, "[t]he economic impact of the regulation on the\nclaimant and ... the extent to which the regulation has interfered with distinct investmentbacked expectations" are keenly relevant to takings analysis generally. Penn Central\nTransportation Co. v. New York City, 438 U.S. 104, 124 (1978). It is true that in at least\nsome cases the landowner with 95% loss will get nothing, while the landowner with total\nloss will recover in full. But that occasional result is no more strange than the gross\ndisparity between the landowner whose premises are taken for a highway (who recovers in\nfull) and the landowner whose property is reduced to 5% of its former value by the highway\n(who recovers nothing). Takings law is full of these "all or-nothing" situations.\nJUSTICE STEVENS similarly misinterprets our focus on "developmental" uses of property\n(the uses proscribed by the Beachfront Management Act) as betraying an "assumption that\nthe only uses of property cognizable under the Constitution are developmental uses." Post,\nat 1065, n.3. We make no such assumption. Though our prior takings cases evince an\nabiding concern for the productive use of, and economic investment in, land, there are\nplainly a number of noneconomic interests in land whose impairment will invite exceedingly\nclose scrutiny under the Takings Clause. See, e. g., Loretto v. Teleprompter Manhattan\nCATV Corp., 458 U.S. 419, 436 (1982) (interest in excluding strangers from one\'s land).\n388\n\n\x0cB\nThe trial court found Lucas\'s two beachfront lots to have been rendered valueless by\nrespondent\'s enforcement of the coastal-zone construction ban.9 Under Lucas\'s theory of\nthe case, which rested upon our "no economically viable use" statements, that finding\nentitled him to compensation. Lucas believed it unnecessary to take issue with either the\npurposes behind the Beachfront Management Act, or the means chosen by the South\nCarolina Legislature to effectuate those purposes. The South Carolina Supreme Court,\nhowever, thought otherwise. In its view, the Beachfront Management Act was no ordinary\nenactment, but involved an exercise of South Carolina\'s "police powers" to mitigate the\nharm to the public interest that petitioner\'s use of his land might occasion. * * *\nIt is correct that many of our prior opinions have suggested that "harmful or noxious uses"\nof property may be proscribed by government regulation without the requirement of\ncompensation. For a number of reasons, however, we think the South Carolina Supreme\nCourt was too quick to conclude that that principle decides the present case. The "harmful\nor noxious uses" principle was the Court\'s early attempt to describe in theoretical terms why\ngovernment may, consistent with the Takings Clause, affect property values by regulation\nwithout incurring an obligation to compensate-a reality we nowadays acknowledge explicitly\nwith respect to the full scope of the State\'s police power.* * * \xe2\x80\x9cHarmful or noxious use\xe2\x80\x9d\nanalysis was, in other words, simply the progenitor of our more contemporary statements\nthat "land-use regulation does not effect a taking if it \'substantially advance[s] legitimate\nstate interests\' .... " Nollan, supra, at 834 (quoting Agins v. Tiburon, 447 U.S., at 260); see\nalso Penn Central Transportation Co., supra, at 127; Euclid v. Ambler Realty Co., 272 U.S.\n365, 387-388 (1926).\nThe transition from our early focus on control of "noxious" uses to our contemporary\nunderstanding of the broad realm within which government may regulate without\ncompensation was an easy one, since the distinction between "harmpreventing" and\n"benefit-conferring" regulation is often in the eye of the beholder. It is quite possible, for\nexample, to describe in either fashion the ecological, economic, and esthetic concerns that\ninspired the South Carolina Legislature in the present case. One could say that imposing a\nservitude on Lucas\'s land is necessary in order to prevent his use of it from "harming"\nSouth Carolina\'s ecological resources; or, instead, in order to achieve the "benefits" of an\necological preserve.11 Compare, e. g., Claridge v. New Hampshire [*1025] Wetlands Board,\n11\n\nIn the present case, in fact, some of the "[South Carolina] legislature\'s \'findings\' " to which\nthe South Carolina Supreme Court purported to defer in characterizing the purpose of the\nAct as "harm-preventing," * * * seem to us phrased in "benefit conferring" language instead.\nFor example, they describe the importance of a construction ban in enhancing "South\nCarolina\'s annual tourism industry revenue," * * * in "provid[ing] habitat for numerous\nspecies of plants and animals, several of which are threatened or endangered," * * * and in\n"provid[ing] a natural healthy environment for the citizens of South Carolina to spend leisure\n389\n\n\x0c125 N.H. 745, 752, 485 A.2d 287, 292 (1984) (owner may, without compensation, be\nbarred from filling wetlands because landfilling would deprive adjacent coastal habitats and\nmarine fisheries of ecological support), with, e. g., Bartlett v. Zoning Comm\'n of Old Lyme,\n161 Conn. 24, 30, 282 A.2d 907, 910 (1971) (owner barred from filling tidal marshland must\nbe compensated, despite municipality\'s "laudable" goal of "preserv[ing] marshlands from\nencroachment or destruction"). Whether one or the other of the competing\ncharacterizations will come to one\'s lips in a particular case depends primarily upon one\'s\nevaluation of the worth of competing uses of real estate. * * * A given restraint will be seen\nas mitigating "harm" to the adjacent parcels or securing a "benefit" for them, depending\nupon the observer\'s evaluation of the relative importance of the use that the restraint\nfavors. See Sax, Takings and the Police Power, 74 Yale L.J. 36, 49 (1964) ("[T]he problem\n[in this area] is not one of noxiousness or harm-creating activity at all; rather it is a problem\nof inconsistency between perfectly innocent and independently desirable uses"). Whether\nLucas\'s construction of single family residences on his parcels should be described as\nbringing "harm" to South Carolina\'s adjacent ecological resources thus depends principally\nupon whether the describer believes that the State\'s use interest in nurturing those\nresources is so important that any competing adjacent use must yield. 12\nWhen it is understood that "prevention of harmful use" was merely our early formulation of\nthe police power justification necessary to sustain (without compensation) any regulatory\ntime which serves their physical and mental well-being," * * * It would be pointless to make\nthe outcome of this case hang upon this terminology, since the same interests could readily\nbe described in "harm-preventing" fashion.\nJUSTICE BLACKMUN, however, apparently insists that we must make the outcome hinge\n(exclusively) upon the South Carolina Legislature\'s other, "harm-preventing"\ncharacterizations, focusing on the declaration that "prohibitions on building in front of the\nsetback line are necessary to protect people and property from storms, high tides, and\nbeach erosion." * * * He says "[n]othing in the record undermines [this] assessment,"\n* * * apparently seeing no significance in the fact that the statute permits owners of existing\nstructures to remain (and even to rebuild if their structures are not "destroyed beyond\nrepair," * * * ), and in the fact that the 1990 amendment authorizes the Council to issue\npermits for new construction in violation of the uniform prohibition * * *\n12\n\nIn JUSTICE BLACKMUN\'S view, even with respect to regulations that deprive an owner\nof all developmental or economically beneficial land uses, the test for required\ncompensation is whether the legislature has recited a harm-preventing justification for its\naction. See post, at 1039, 1040-1041, 1047-1051. Since such a justification can be\nformulated in practically every case, this amounts to a test of whether the legislature has a\nstupid staff. We think the Takings Clause requires courts to do more than insist upon artful\nharm-preventing characterizations.\n390\n\n\x0cdiminution in value; and that the distinction between regulation that "prevents harmful use"\nand that which "confers benefits" is difficult, if not impossible, to discern on an objective,\nvalue-free basis; it becomes self-evident that noxious-use logic cannot serve as a\ntouchstone to distinguish regulatory "takings" -which require compensation -from regulatory\ndeprivations that do not require compensation. A fortiori the legislature\'s recitation of a\nnoxious-use justification cannot be the basis for departing from our categorical rule that\ntotal regulatory takings must be compensated. If it were, departure would virtually always\nbe allowed. The South Carolina Supreme Court\'s approach would essentially nullify\nMahon\'s affirmation of limits to the noncompensable exercise of the police power. Our\ncases provide no support for this: None of them that employed the logic of "harmful use"\nprevention to sustain a regulation involved an allegation that the regulation wholly\neliminated the value of the claimant\'s land. See Keystone Bituminous Coal Assn., 480 U.S.,\nat 513-514 (REHNQUIST, C. J., dissenting) * * *\nWhere the State seeks to sustain regulation that deprives land of all economically beneficial\nuse, we think it may resist compensation only if the logically antecedent inquiry into the\nnature of the owner\'s estate shows that the proscribed use interests were not part of his\ntitle to begin with. * * * This accords, we think, with our "takings" jurisprudence, which has\ntraditionally been guided by the understandings of our citizens regarding the content of, and\nthe State\'s power over, the "bundle of rights" that they acquire when they obtain title to\nproperty. It seems to us that the property owner necessarily expects the uses of his\nproperty to be restricted, from time to time, by various measures newly enacted by the\nState in legitimate exercise of its police powers; "[a]s long recognized, some values are\nenjoyed under an implied limitation and must yield to the police power." Pennsylvania Coal\nCo. v. Mahon, 260 U.S., at 413. And in the case of personal property, by reason of the\nState\'s traditionally high degree of control over commercial dealings, he ought to be aware\nof the possibility that new regulation might even render his property economically worthless\n(at least if the property\'s only economically productive use is sale or manufacture for sale).\nSee Andrus v. Allard, 444 U.S. 51, 66-67 (1979) (prohibition on sale of eagle feathers). In\nthe case of land, however, we think the notion pressed by the Council that title is somehow\nheld subject to the "implied limitation" that the State may subsequently eliminate all\neconomically valuable use is inconsistent with the historical compact recorded in the\nTakings Clause that has become part of our constitutional culture.* * *\nWhere "permanent physical occupation" of land is concerned, we have refused to allow the\ngovernment to decree it anew (without compensation), no matter how weighty the asserted\n"public interests" involved, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S., at\n426 -though we assuredly would permit the government to assert a permanent easement\nthat was a pre-existing limitation upon the land title. * * *\nWe believe similar treatment must be accorded confiscatory regulations, i. e., regulations\nthat prohibit all economically beneficial use of land: Any limitation so severe cannot be\nnewly legislated or decreed (without compensation), but must inhere in the title itself, in the\n391\n\n\x0crestrictions that background principles of the State\'s law of property and nuisance already\nplace upon land ownership. A law or decree with such an effect must, in other words, do no\nmore than duplicate the result that could have been achieved in the courts-by adjacent\nlandowners (or other uniquely affected persons) under the State\'s law of private nuisance,\nor by the State under its complementary power to abate nuisances that affect the public\ngenerally, or otherwise.16\nOn this analysis, the owner of a lakebed, for example, would not be entitled to\ncompensation when he is denied the requisite permit to engage in a landfilling operation\nthat would have the effect of flooding others\' land. Nor the corporate owner of a nuclear\ngenerating plant, when it is directed to remove all improvements from its land upon\ndiscovery that the plant sits astride an earthquake fault. Such regulatory action may well\nhave the effect of eliminating the land\'s only economically productive use, but it does not\nproscribe a productive use that was previously permissible under relevant property and\nnuisance principles. The use of these properties for what are now expressly prohibited\npurposes was always unlawful, and (subject to other constitutional limitations) it was open\nto the State at any point to make the implication of those background principles of nuisance\nand property law explicit. * * * In light of our traditional resort to "existing rules or\nunderstandings that stem from an independent source such as state law" to define the\nrange of interests that qualify for protection as "property" under the Fifth and Fourteenth\nAmendments, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); see,\ne. g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011-1012 (1984); Hughes v.\nWashington, 389 U.S. 290, 295 (1967) (Stewart, J., concurring), this recognition that the\nTakings Clause does not require compensation when an owner is barred from putting land\nto a use that is proscribed by those "existing rules or understandings" is surely\nunexceptional. When, however, a regulation that declares "off-limits" all economically\nproductive or beneficial uses of land goes beyond what the relevant background principles\nwould dictate, compensation must be paid to sustain it.17\nThe "total taking" inquiry we require today will ordinarily entail (as the application of state\n16\n\nThe principal "otherwise" that we have in mind is litigation absolving the State (or private\nparties) of liability for the destruction of "real and personal property, in cases of actual\nnecessity, to prevent the spreading of a fire" or to forestall other grave threats to the lives\nand property of others. Bowditch v. Boston, 101 U.S. 16, 18-19 (1880); see United States v.\nPacific R. Co., 120 U.S. 227, 238-239 (1887).\n17\n\nOf course, the State may elect to rescind its regulation and thereby avoid having to pay\ncompensation for a permanent deprivation. See First English Evangelical Lutheran Church,\n482 U. S., at 321. But "where the [regulation has] already worked a taking of all use of\nproperty, no subsequent action by the government can relieve it of the duty to provide\ncompensation for the period during which the taking was effective." Ibid.\n392\n\n\x0cnuisance law ordinarily entails) analysis of, among other things, the degree of harm to\npublic lands and resources, or adjacent private property, posed by the claimant\'s proposed\nactivities, see, e. g., Restatement (Second) of Torts \xc2\xa7\xc2\xa7 826, 827, the social value of the\nclaimant\'s activities and their suitability to the locality in question, see, e. g., id., \xc2\xa7\xc2\xa7 828(a)\nand (b), 831, and the relative ease with which the alleged harm can be avoided through\nmeasures taken by the claimant and the government (or adjacent private landowners) alike,\nsee, e. g., id., \xc2\xa7\xc2\xa7 827(e), 828(c), 830. The fact that a particular use has long been engaged\nin by similarly situated owners ordinarily imports a lack of any common-law prohibition\n(though changed circumstances or new knowledge may make what was previously\npermissible no longer so, see id., \xc2\xa7 827, Comment g. So also does the fact that other\nlandowners, similarly situated, are permitted to continue the use denied to the claimant.\nIt seems unlikely that common-law principles would have prevented the erection of any\nhabitable or productive improvements on petitioner\'s land; they rarely support prohibition of\nthe "essential use" of land, Curtin v. Benson, 222 U.S. 78, 86 (1911). The question,\nhowever, is one of state law to be dealt with on remand. We emphasize that to win its case\nSouth Carolina must do more than proffer the legislature\'s declaration that the uses Lucas\ndesires are inconsistent with the public interest, or the conclusory assertion that they violate\na common-law maxim such as sic utere tuo ut alienum non laedas. As we have said, a\n"State, by ipse dixit, may not transform private property into public property without\ncompensation ...." Webb\'s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164\n(1980). Instead, as it would be required to do if it sought to restrain Lucas in a commonlaw\naction for public nuisance, South Carolina must identify background principles of nuisance\nand property law that prohibit the uses he now intends in the circumstances in which the\nproperty is presently found. Only on this showing can the State fairly claim that, in\nproscribing all such beneficial uses, the Beachfront Management Act is taking nothing.18\nThe judgment is reversed, and the case is remanded for proceedings not inconsistent with\nthis opinion.\nSo ordered.\n\n18\n\nJUSTICE BLACKMUN decries our reliance on background nuisance principles at least in\npart because he believes those principles to be as manipulable as we find the "harm\nprevention" / "benefit conferral" dichotomy, see post, at 1054-1055. There is no doubt some\nleeway in a court\'s interpretation of what existing state law permits-but not remotely as\nmuch, we think, as in a legislative crafting of the reasons for its confiscatory regulation. We\nstress that an affirmative decree eliminating all economically beneficial uses may be\ndefended only if an objectively reasonable application of relevant precedents would exclude\nthose beneficial uses in the circumstances in which the land is presently found.\n393\n\n\x0cQuestions and Comments\n1.\n\nCategorical Rule: After Lucas, if government regulation of wetlands denies a\nlandowner \xe2\x80\x9call economically beneficial or productive use\xe2\x80\x9d of their property, the\ngovernment will be required to compensate the landowner. If the impact of the\ngovernment action is less than a denial of all economically beneficial or productive\nuse of property, though, the court will continue to use the ad hoc, three factor Penn\nCentral analysis to determine whether the government action is a taking.\n\n2.\n\nDenial of All Economically Beneficial or Productive Use: Did the Court provide\nany direction regarding how to determine when government regulation denies \xe2\x80\x9call\neconomically beneficial or productive use\xe2\x80\x9d of a landowner\xe2\x80\x99s property? In a separate\nstatement, Justice Souter suggested that the determination that the state regulation\ndeprived Lucas of his entire economic interest in his property was \xe2\x80\x9chighly\nquestionable\xe2\x80\x9d, and Souter suggested that the Court should dismiss the writ of\ncertiorari and await a case to directly address the issue of what constitutes a \xe2\x80\x9ctotal\ndeprivation\xe2\x80\x9d of use. 505 U.S. at 1076, 1078. In his dissenting opinion, Justice\nBlackmun labeled the determination \xe2\x80\x9cimplausible\xe2\x80\x9d. 505 U.S. at 1036. Why did the\nSouth Carolina Coastal Council never challenge the trial court\xe2\x80\x99s determination that\nthe regulation denied the landowner all economically beneficial or productive use of\nhis property?\n\n3.\n\nTemporary v. Permanent Taking: David Lucas bought the lots at issue in this\nlitigation in 1986. The Beachfront Management Act, which limited Lucas\xe2\x80\x99\ndevelopment of the property, was enacted in 1988. In 1990, after Lucas challenged\nthe statute and government regulation as a taking, the Act was amended to\nauthorize landowners like Lucas to apply for a permit to develop their property.\nLucas never applied for the permit, but pressed forward with his takings challenge. If\nthe Supreme Court was reviewing Lucas\xe2\x80\x99 challenge as a permanent taking claim,\nwould the challenge be ripe? The Court did not review the challenge as a permanent\ntaking claim but, rather, as a claim that the state regulation constituted a \xe2\x80\x9ctemporary\ntaking\xe2\x80\x9d from the time that the Beachfront Management Act was enacted until it was\namended to provide an opportunity to seek a permit (1988-1990). In a portion of the\nopinion not reproduced above, the majority indicated that Lucas could still apply for\na permit even after the Supreme Court\xe2\x80\x99s decision in the case. If Lucas were to\nreceive a permit to develop his property after the Court\xe2\x80\x99s decision, what damages\ncould he recover for the temporary taking?\n\n4.\n\nAn Exception to the Categorical Rule: Prior to the Lucas decision, it was believed\nthat there was a \xe2\x80\x9cnoxious use\xe2\x80\x9d exception in takings jurisprudence, whereby\ngovernments would not have to provide compensation, regardless of the extent of\neconomic harm caused by regulation, if the government was regulating to prevent a\n\xe2\x80\x9cnoxious use\xe2\x80\x9d of property. As the Lucas Court noted, the South Carolina Coastal\n394\n\n\x0cCouncil argued that regulation designed to prevent harm should be treated\ndifferently than regulation to confer benefits on citizens. Although the Lucas Court\nrejected that approach, how is the exception to the categorical rule created by the\nCourt different from the \xe2\x80\x9cnoxious use\xe2\x80\x9d exception? Justice Blackmun, in dissent,\nargues that the new test adopted by the Court could be as malleable as the harm\nprevention/benefit conferral analysis that the Court was rejecting. What \xe2\x80\x9cbackground\nprinciples of the State\xe2\x80\x99s law of property and nuisance\xe2\x80\x9d will be considered in\ndetermining that a regulated use of property is not \xe2\x80\x9cpart of [the landowner\xe2\x80\x99s] title to\nbegin with\xe2\x80\x9d, so that government regulation can extinguish that use without paying\ncompensation? Should the exception be limited to common law principles or can it\ninclude state statutory provisions? In a concurring opinion, Justice Kennedy\nsuggested that reasonable expectations regarding property use should be\n\xe2\x80\x9cunderstood in light of the whole of our legal tradition\xe2\x80\x9d and that the Court should not\nlimit its focus to the common law of nuisance and property. 505 U.S. at 1035. Did\nthe Lucas Court find that background principles of South Carolina nuisance or\nproperty law prohibited the uses of property prohibited by the Beachfront\nManagement Act?\n5.\n\nBackground Principles in Wetlands Cases: Although the Lucas Court allows the\ngovernment to avoid paying compensation when prohibiting uses of property that,\nbased on background principles of state property or nuisance law, are not part of the\nlandowner\xe2\x80\x99s title to begin with, that exception has had little influence in wetlands\ncases so far. The Court of Federal Claims and the U.S. Court of Appeals for the\nFederal Circuit have generally rejected claims that wetland filling activities are\nnuisances which can be prohibited by the government without compensation. See,\ne.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Florida\nRock Industries v. United States, 45 Fed. Cl. 21 (1999); Bowles v. United States, 31\nFed. Cl. 37 (1994); Florida Rock Industries v. United States, 21 Cl. Ct. 161 (1990),\nvacated on other grounds, 18 F.3d 1560 (Fed. Cir. 1994), cert denied 513 U.S. 1109\n(1995). While some state courts have viewed the \xe2\x80\x9cpublic trust\xe2\x80\x9d doctrine as a\nbackground principle of state law that justifies regulation without compensation, see\nJust v. Marinette County, 201 N.W.2d. 761 (Wis. 1972); McQueen v. South Carolina\nCoastal Council, 580 S.E.2d 116 (S.C. 2003), the Court of Federal Claims and the\nFederal Circuit have not adopted that approach.\nFor an outline of the \xe2\x80\x9cpublic trust\xe2\x80\x9d doctrine and a proposal for a new theoretical\nframework for the doctrine, see Alexandra B. Klass, Modern Public Trust Principles:\nRecognizing Rights and Integrating Standards, 82 Notre Dame L. Rev. 699 (2013).\nFor an exploration of whether \xe2\x80\x9cbackground principles\xe2\x80\x9d can evolve to incorporate\nnatural capital and ecosystem services, see J.B. Ruhl, The \xe2\x80\x98Background Principles\xe2\x80\x99\nof Natural Capital and Ecosystem services - Did Lucas Open Pandora\xe2\x80\x99s Box?, 22 J.\nLand Use & Envtl L. 525 (2007). Professor Timothy M. Mulvaney also explores the\nscope of \xe2\x80\x9cbackground principles\xe2\x80\x9d in Foreground Principles, 20 Geo. Mason L. Rev.\n395\n\n\x0c837 (2013). Professors Michael C. Blumm and Lucus Ritchie explore the rise in\ncategorical defenses to takings claims resulting from the Lucas focus on\n\xe2\x80\x9cbackground principles\xe2\x80\x9d in Lucas\xe2\x80\x99s Unlikely Legacy: The Rise of Background\nPrinciples as Categorical Takings Defenses, 29 Harv. Envtl. L. Rev. 321 (2005).\n6.\n\nAgins v. City of Tiburon: The Lucas Court noted that the Supreme Court, in Agins\nv. City of Tiburon, 447 U.S. 255 (1980), held that government regulation can be a\ntaking if it does not substantially advance legitimate state interests or if it denies an\nowner economically viable use of his land. Although the Supreme Court routinely\ncited that test in takings decisions, suggesting that government regulation that did\nnot deny an owner economically viable use of his land could still be a taking if the\nregulation did not substantially advance legitimate state interests, the Court later\nheld, in Lingle v. Chevron, U.S.A., 544 U.S. 528 (2005), that the requirement that\ngovernment regulation substantially advance legitimate state interests is based on\nthe Due Process clause, and is not part of the takings analysis. That decision had\nlittle impact on wetlands taking litigation, since few challengers ever asserted that\nthe government regulation of wetlands did not substantially advance legitimate\ngovernment interests.\n\n7.\n\nSubsequent History: On remand, the South Carolina Supreme Court found that\nthere were no background principles of South Carolina law that limited Lucas\xe2\x80\x99\nconstruction of a home on his property, so that the restrictions on his development\nconstituted a temporary taking of his property. See Lucas v. South Carolina Coastal\nCouncil, 424 S.E.2d 424, 23 E.L.R. 20297 (S.C. 1992). The South Carolina\nSupreme Court then remanded the case to the trial court to make specific findings of\ndamages from the date of enactment of the Beachfront Management Act through\nthe date of the court\xe2\x80\x99s order. Id. South Carolina ultimately settled the case for $1.5\nmillion, buying the two lots from Lucas for $425,000 each, and paying legal fees,\ncosts, and interest. See H. Jane Lehman, Case Closed: Settlement Ends Property\nRights Lawsuit, Chicago Tribune, July 25, 1993. The State subsequently sold the\nlots to a private developer for $750,000. See Royal C. Gardner, Lawyers, Swamps,\nand Money 207 (Island Press 2011). In 1996, a 4200 square foot home was built on\nLot 22, and it was valued at $2,124,999 in 2013, according to the Charleston County\ntax records (search for 11 Beachwood East, Isle of Palms). In 2001, a 3400 square\nfoot home was built on Lot 24, and it was valued at $2,700,000 in 2013. Id. (Search\nfor 13 Beachwood East, Isle of Palms). Professor Oliver Houck outlines the history\nof the Lucas litigation in detail in More Unfinished Stories: Lucas, Atlanta Coalition,\nand Palila/Sweet Home, 75 U. Colo. L. Rev. 331 (2004).\n\n396\n\n\x0cIV.\n\nApplying Lucas and Penn Central in the Wetlands Context\n\nWhile Lucas created a categorical rule for total\ndeprivations of economically beneficial or productive\nuses of property, which the Court of Federal Claims has\napplied in one case involving the denial by the Corps of\na Section 404 permit, see Lost Tree Village Corp. v.\nUnited States, No. 08-117L (Fed. Cl. 03/14/2014), most\ntakings claims based on wetland regulation continue to\nbe analyzed under the Penn Central analysis. As noted\nabove, the analysis focuses on the extent of economic\nimpact on the landowner\xe2\x80\x99s property caused by the\ngovernment action, the interference with the\nlandowner\xe2\x80\x99s reasonable investment backed\nexpectations, and the character of the government\naction.\nIn calculating the extent of economic impact, courts Photo 37 "Brass scales with cupped\ngenerally compare the fair market value of the trays" by Toby Hudson - Own work.\nlandowner\xe2\x80\x99s property immediately before the http://commons.wikimedia.org/wiki/Cat\ngovernment action challenged as a taking to the value of egory:Unbalanced_scales_of_justice#me\nthe property immediately after the action. See Florida diaviewer/File:Brass_scales_with_cuppe\nd_trays.png [CC-BY-SA-3.0]\nRock Industries v. United States, 18 F.3d 1560 (Fed.\nCir. 1994), cert denied 513 U.S. 1109 (1995); Bowles v. United States, 31 Fed. Cl. 37\n(1994). Courts are no more willing to create bright line rules regarding the extent of\neconomic impact that could trigger a taking in the wetlands context than in other contexts.\nWhile cases where plaintiffs have prevailed on takings claims for wetland permit denials\nusually involve reductions in property value of 90% or more, see Loveladies Harbor, Inc. v.\nUnited States, 28 F.3d 1171 (Fed. Cir. 1994) (99% reduction); Florida Rock Industries v.\nUnited States, 21 Cl. Ct. 161 (1990) (95% reduction) the Court of Federal Claims has found\nthat a 73% reduction in property value could constitute a taking of property, when\nconsidered in light of the other Penn Central factors. See Florida Rock Industries v. United\nStates, 45 Fed. Cl. 21 (1999). While landowners frequently assert that Corps permit denials\nrequire them to leave wetlands in a natural state and render their property valueless, the\nincrease in mitigation banking, creating opportunities to reap economic benefits from\nrestoring, enhancing, preserving or creating wetlands, may impact the analysis of the\neconomic impact of development restrictions in more cases.\nFor the second Penn Central factor, in reviewing the extent to which government regulation\ninterferes with a landowner\xe2\x80\x99s reasonable investment-backed expectations, courts focus\non the regulatory landscape that was in place at the time that the landowner acquired the\nproperty. Although the Supreme Court has rejected a bright line rule that would prohibit\nlandowners from recovering for a taking if the regulatory scheme that allegedly triggers the\n397\n\n\x0ctaking was in place at the time the landowner acquired the property, see Palazzolo v.\nRhode Island, 533 U.S. 606 (2001), it is more difficult for the landowner to prove that the\ngovernment regulation interfered with reasonable investment backed expectations in such\na case. Thus, when a landowner acquired property after the Clean Water Act Section 404\npermit program was implemented and it was clear that the program applied to wetlands, it\nwill be more difficult for the landowner to prevail on a claim that restrictions on development\nof the property based on the 404 program constitute a taking than it will be for a landowner\nwho acquired property before the Section 404 program was implemented and applied to\nwetlands. After all, to the extent that it was clear, at the time that the landowner acquired\nthe property, that a permit would be required to develop the property, any expectation that\nthe property can be developed without obtaining the permit, is unreasonable.\nThe final factor in the Penn Central analysis is the character of the government action.\nAs noted earlier, in focusing on this factor, courts often examine the \xe2\x80\x9caverage reciprocity of\nadvantage\xe2\x80\x9d created by the government regulatory scheme. If a landowner receives a\nbenefit from restrictions placed on his property because other landowners are subject to\nsimilar restrictions, courts will be less likely to find that the government restriction is a\ntaking. On the other hand, if courts feel that a landowner is being unfairly singled out and\nforced to shoulder a significant share of the burden to protect a broad social interest, courts\nwill be more likely to find that the government restriction is a taking.\nQuestions and Comments\n1.\n\nCompensation: If a permit denial, a condition in a permit, or other land use\nrestriction in a wetlands protection program \xe2\x80\x9ctakes\xe2\x80\x9d a landowner\xe2\x80\x99s property, the\ngovernment will required to pay compensation for the restriction. To the extent that\nthe restriction deprives the landowner of all or almost of the property value, the\ngovernment can acquire title to the property in exchange for the payment of\ncompensation. However, if a government regulation only deprives a landowner of\n70% of their property value, what should the remedy be? See Florida Rock\nIndustries v. United States, 45 Fed. Cl. 21 (1999).\n\n2.\n\nTemporary Takings: While landowners can recover compensation for temporary\ntakings caused by a government restriction on the use of property which is later\nremoved, courts have not found that the delay caused by the processing of a\nSection 404 permit application constitutes a temporary taking. See Bay-Houston\nTowing Co. v. United States, 58 Fed. Cl. 462 (2003). However, a landowner may be\nable to recover compensation for damages suffered between the time that the Corps\ndenied the landowner a Section 404 permit and the time that the Corps eventually\nissued the permit, following a judicial challenge to the initial permit denial, see\nResource Investments, Inc. v. United States, 85 Fed. Cl. 447 (2009), or for the\ndamages suffered between the time that the Corps issued a cease and desist order\nand the time that a court remanded the matter to the Corps after a judicial challenge.\n398\n\n\x0cSee Creppel v. United States, 30 Fed. Cl. 323 (1994), aff\xe2\x80\x99d 41 F.3d 627 (Fed. Cir.\n1994). To the extent that such claims are allowed, courts analyze the claims under\nthe Lucas or Penn Central frameworks, depending on the severity of the deprivation\nof property use.\n3.\n\nLitigation Trends: The government prevailed in the first wetlands-related takings\nlawsuit in 1970, Zabel v. Tabb, 430 F.2d 199 (1970), cert. denied 401 U.S. 910\n(1971), as well as most of the takings lawsuits brought against it through the mid1980s. See, e.g., Deltona Corp. v. United States, 657 F.2d 1184 (Cl. Ct. 1981), cert.\ndenied, 455 U.S. 1017 (1982); Jentgen v. United States, 657 F.2d 1210 (Cl. Ct.\n1981), cert. denied, 455 U.S. 1017 (1982). From the mid-1980s through the mid1990s, courts found that Corps\xe2\x80\x99 wetland permit denials constituted takings in several\ncases, including two on the same day in 1990. See Florida Rock Industries v. United\nStates, 21 Cl. Ct. 161 (1990); Loveladies Harbor v. United States, 21 Cl. Ct. 153\n(1990). The United States fared better between 1994 and 2005, prevailing in every\nwetlands taking lawsuit except one. See Robert Meltz, Wetlands and Regulatory\nTakings, in Wetlands Law and Policy: Understanding Section 404 429 (American\nBar Association, Section on Environment, Energy and Resources 2005). However,\nthe government did not fare as well in the recent litigation surrounding the Lost Tree\nVillage development in Florida, discussed after the next note.\n\n4.\n\nParcel as a Whole: One issue that is significant for wetlands takings cases and was\nraised in a footnote, but not resolved, in Lucas concerns the extent of the property\nthat courts examine when determining whether government regulation constitutes a\ntotal deprivation of economically beneficial or productive use, for Lucas, and that\ncourts examine when determining the economic impact of government regulation for\nPenn Central. If a person owns 100 acres of land that includes 20 acres of wetlands,\nand the government regulatory scheme limits the development of the 20 acres of\nwetlands, but does not limit the development of the other 80 acres, should the court\nfocus on the economic impact of the government regulation on the 20 acres or the\n80 acres? The Supreme Court has repeatedly held that courts should focus their\nanalysis on the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d, see Tahoe Sierra Preservation Council v. Tahoe\nRegional Planning Agency, 535 U.S. 302 (2002); Penn Central Transportation\nCompany v. New York City, 438 U.S. 104 (1978); but the Court has not provided\nconcrete guidance on how to determine what constitutes the \xe2\x80\x9cparcel as a whole.\xe2\x80\x9d In\nfootnote 7 in Lucas, the Court did not establish a bright line rule but noted, instead,\nthat \xe2\x80\x9c[t]he answer to this difficult question may lie in how the owner\'s reasonable\nexpectations have been shaped by the State\'s law of property- i.e, whether and to\nwhat degree the State\'s law has accorded legal recognition and protection to the\nparticular interest in land with respect to which the takings claimant alleges a\ndiminution in (or elimination of) value.\xe2\x80\x9d\nAlthough the Supreme Court focused on state property law as the basis for\n399\n\n\x0cdetermining the extent of property to be evaluated in a takings case, when a\nlandowner contemporaneously acquires or owns several lots in the vicinity of a lot\ncontaining wetlands, the Court of Federal Claims and the U.S. Court of Appeals for\nthe Federal Circuit frequently focus on the expectations of the landowner and the\nmanner in which the landowner treated the property for development purposes in\ndetermining whether the parcel to be evaluated is limited to the lot containing the\nwetlands or whether the parcel includes other lots in the vicinity that the landowner\nowns or acquired contemporaneously with the lot containing the wetlands. See, e.g.,\nPalm Beach Isles Associates v. United States, 208 F.3d 1374 (Fed. Cir. 2000);\nForest Properties, Inc. v. United States, 177 F.3d 1360, 1365 (Fed. Cir. 1999).\nThe following case demonstrates the approach taken by the Federal Circuit.\nLost Tree Village Corporation v.\nUnited States\n43 E.L.R. 20012 (Fed. Cir. 2013)\nRADER, Chief Judge\n\nResources for the Case\nUnedited Opinion (includes a map) (Court\xe2\x80\x99s\nwebsite)\nGoogle Map of all the cases in the coursebook\nOral Argument - from Federal Circuit website\n\nThe United States Court of Federal Claims determined that the Army Corps of Engineers\ndid not effect a regulatory taking compensable under the Fifth Amendment when it denied\nLost Tree Village Corporation\'s application for a permit to fill wetlands on its 4.99 acre plat\n(Plat 57). In reaching this conclusion, the Court of Federal Claims found Lost Tree\'s parcel\nas a whole includes Plat 57, a neighboring upland plat (Plat 55), and scattered wetlands in\nthe vicinity owned by Lost Tree at the time the permit was denied. Because the Court of\nFederal Claims erred in its determination of the relevant parcel, this court reverses and\nremands for further proceedings.\nI\nIn 1968, Lost Tree Village Corporation (Lost Tree) entered an Option Agreement to\npurchase approximately 2,750 acres of property on Florida\'s mid-Atlantic coast, near the\nCity of Vero Beach. The property covered by the Option Agreement encompasses a barrier\nisland on the Atlantic Ocean, which is bisected by the A-1-A Highway, and stretches\nwestward to interior land and islands on the Indian River. Lost Tree purchased substantially\nall of the land covered by the Option Agreement in a series of transactions during the\nperiod 1969-1974. In 1974, Lost Tree purchased the 4.99 acres now known as Plat 57 as\npart of a transaction in which it acquired the entire peninsula on which Plat 57 is located\n(known as the Island of John\'s Island), Gem Island, and other parcels in and along the\nIndian River.\n400\n\n\x0cBeginning in 1969 and continuing through the mid-1990s, Lost Tree developed\napproximately 1,300 acres of the property purchased under the 1968 Option Agreement\ninto the upscale gated residential community of John\'s Island. The John\'s Island community\nincludes most of Lost Tree\'s holdings on the barrier island, Gem Island, and the Island of\nJohn\'s Island. The John\'s Island community also includes some property that was not\ncovered by the 1968 Option Agreement and was never owned by Lost Tree. Lost Tree built\nthe infrastructure for the community, including utilities, sewage systems, and the majority of\nthe roads and bridges within the community. The community includes two golf courses, a\nbeach club, a private hotel, condominiums, and single family homes. * * *\nIn 1980, Lost Tree submitted to the Army Corps of Engineers (Corps) an application for a\npermit under \xc2\xa7 404 of the Clean Water Act * * * to make numerous infrastructure\nimprovements including construction of causeways connecting the barrier island, Gem\nIsland, and the Island of John\'s Island. The application also sought approval to dredge\ncanals and fill some wetland areas to create developable lots. Lost Tree\'s application was\naccompanied by plans and drawings for its proposed development of the Island of John\'s\nIsland and Gem Island (the 1980 Development Plan). A drawing in the 1980 Development\nPlan depicts a substantial portion of Plat 57, as well as other areas, shaded in green and\nlabeled "wildlife preserve." * * *\nThe Corps did not act on Lost Tree\'s 1980 permit application as submitted because the\nState of Florida required numerous changes to Lost Tree\'s plans. Lost Tree submitted a\nrevised proposal to the Corps in 1982. The proposal stated that "all originally proposed\nproject features are being deleted from this application except the bridge from John[\']s\n[Island] to Gem Island and its approaches." * * * The Corps approved a modified version of\nthe 1982 application, and development of the Island of John\'s Island and Gem Island\nproceeded throughout the 1980s and 1990s "in a manner that diverged in significant ways\nfrom the 1980 Application." * * * During development, Lost Tree sought and received two\nadditional \xc2\xa7 404 permits for infrastructure improvements and construction of canals, and\nreserved various parcels as conservation easements by deed restrictions recorded in favor\nof the local, state, or federal government. Plat 57 was not among the land dedicated for\nconservation.\nPlat 57 lies on Stingaree Point, a small peninsula located on the southwestern portion of\nthe Island of John\'s Island. Lost Tree developed Stingaree Point in 1985-1986. At that time,\nthe company built Stingaree Point Road, installed water and sewer lines, and recorded Plat\n40, which is comprised of six lots to the south and west of the road. Also in 1985, Lost Tree\n"stubbed out" water and sewer lines to Plat 40 and to unplatted land on the eastern end of\nthe Point that was later recorded as Plat 55. Lost Tree sold the six lots on Plat 40 within a\nfew years after the plat was recorded. Homes have been built on those properties.\nTo east of Plat 40, on the north side of Stingaree Point Road, is the 4.99 acre tract\neventually recorded as Plat 57. Plat 57 consists of 1.41 acres of submerged lands and 3.58\n401\n\n\x0cacres of wetlands with some upland mounds installed by Florida\'s "Mosquito Control"\nauthority. To the east of Plat 57 is a mosquito control impoundment, a narrow, 323 foot long\nshoulder along the north side of the road, and then Plat 55. Although Lost Tree neither\n"stubbed out" nor recorded Plat 57 when it developed the rest of Stingaree Point, an April\n1986 appraisal stated that "Stingaree Point development is substantially completed, with\nthe exception of the entrance area, landscaping, and a final layer of asphalt on the road."\n***\nAs the trial court found, Plat 57 was "ignored entirely" during Lost Tree\'s development of\nStingaree Point and the rest of John\'s Island. * * * In 1994, when "most knowledgeable\npeople considered development of the community of John\'s Island to have been completed,\nthe property constituting Plat 57 had not been platted, utilities had not been extended to it,\nnor had it been dedicated to any use such as mitigation for a project on other plats." * * *\nLost Tree did not consider Plat 57 for development until approximately 2002, when the\ncompany learned it would obtain "mitigation credits" as a result of improvements a\nneighboring landowner had agreed to make as part of a development project. Lost Tree\nidentified Plat 57 as a property that could be developed profitably to exploit the mitigation\ncredits. In August 2002, Lost Tree filed an application with the Town of Indian River Shores\nrequesting approval for a preliminary plat and permission to fill 2.13 acres of wetland on the\nproperty. The company then filed a corresponding application for a \xc2\xa7 404 wetlands fill\npermit from the Corps. Lost Tree obtained all state and local approvals to develop Plat 57\ninto a site for one residential home. The Corps, however, denied Lost Tree\'s \xc2\xa7 404 permit\napplication in August 2004, stating that less environmentally damaging alternatives were\navailable, and that Lost Tree "has had very reasonable use of its land at John\'s Island."\n***\nII\nThe Court of Federal Claims held a seven-day trial, after which it denied Lost Tree\'s takings\nclaim. The trial court rejected the government\'s argument that the entire John\'s Island\ncommunity is the relevant parcel for the takings analysis, finding Lost Tree\'s development\nof Plat 57 was "physically and temporally remote from" its development of the rest of the\ncommunity. * * * The court also rejected Lost Tree\'s argument that the relevant parcel was\nPlat 57 alone. Instead, the court determined that the relevant parcel is "Plat 57 and Plat 55,\nplus those scattered wetlands still owned by Lost Tree within the community of John\'s\nIsland." * * * The court found that, while Plats 55 and 57 are "distinct legal parcels, they are\nundoubtedly contiguous." * * * Further, it found Lost Tree has comparable usage objectives\nfor the two plats, because it hopes to sell for profit the lots on each plat.\nBased on its relevant parcel determination, the trial court found the Corps\' denial of the\n\xc2\xa7 404 permit application for Plat 57 "diminished the value of Lost Tree\'s property by\n402\n\n\x0capproximately 58.4%." * * * After analyzing the factors set forth in Penn Central\nTransportation Co. v. City of New York * * * , the court found the diminution in value\ninsufficient support a takings claim. Lost Tree appeals, and this court has jurisdiction\npursuant to 28 U.S.C. \xc2\xa7 1295(a)(3).\nIII\n***\nLost Tree asserts the denial of a \xc2\xa7 404 permit to fill wetlands on Plat 57 by the Corps\neffectively deprived Lost Tree of its property such that it is entitled to just compensation\nunder the Fifth Amendment. While the Government\'s authority to "prevent a property owner\nfrom filling or otherwise injuring or destroying vital wetlands" is unquestioned, the issue is\nwhether the denial of a fill permit for a particular project imposes a disproportionate loss on\nthe affected landowner. Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1175 (Fed.\nCir. 1994) * * *\nRegulations requiring land to be left substantially in its natural state \xe2\x80\x93 such as when a\nwetlands fill permit is denied \xe2\x80\x93 may sometimes "leave the owner of land without\neconomically beneficial or productive options for its use." Lucas v. S. Carolina Coastal\nCouncil, 505 U.S. 1003, 1018 (1992). In the "relatively rare situations where the\ngovernment has deprived a landowner of all economically beneficial uses," the regulatory\naction is recognized as a "categorical taking" that must be compensated. Id.; see Florida\nRock Indus., Inc. v. United States, 18 F.3d 1560, 1564-65 (Fed. Cir. 1994). * * *\nMost regulatory takings cases, however, are analyzed under the framework set out in Penn\nCentral Transportation Co. v. New York City, 438 U.S. 104 (1978). * * *\nIn many cases, as here, the definition of the relevant parcel of land is a crucial antecedent\nthat determines the extent of the economic impact wrought by the regulation. Keystone\nBituminous Coal Ass\'n v. DeBenedictis, 480 U.S. 470, 496 (1987) ("Because our test for\nregulatory taking requires us to compare the value that has been taken from the property\nwith the value that remains in the property, one of the critical questions is determining how\nto define the unit of property \'whose value is to furnish the denominator of the fraction.\'")\n* * * ; Palm Beach Isles, 208 F.3d at 1380 (discussing the "denominator problem").\nDefinition of the relevant parcel affects not only whether a particular regulation is a\ncategorical taking under Lucas, but also affects the Penn Central inquiry into the economic\nimpact of the regulation on the claimant and on investment-backed expectations. The\nrelevant parcel determination is a question of law based on underlying facts. Palm Beach\nIsles, 208 F.3d at 1380.\nThe Supreme Court has not settled the question of how to determine the relevant parcel in\nregulatory takings cases, but it has provided some helpful guideposts. See Lucas, 505 U.S.\n403\n\n\x0cat 1016 n.7. First, the property interest taken is not defined in terms of the regulation being\nchallenged; the takings analysis must focus on "the parcel as a whole." * * * Second, the\n"parcel as a whole" does not extend to all of a landowner\'s disparate holdings in the vicinity\nof the regulated property. Lucas, 505 U.S. 1003, 1017 n.7, 112 S. Ct. 2886, 120 L. Ed. 2d\n798 (characterizing as "extreme" and "unsupportable" the state court\'s analysis in Penn\nCentral Transportation Co. v. New York City, 42 N.Y.2d 324, 333-34, (N.Y. 1977) aff\'d, 438\nU.S. 104 (1978), which examined the diminution in a particular parcel\'s value in light of the\ntotal value of the takings claimant\'s other holdings in the vicinity).\nThis court has taken a "flexible approach, designed to account for factual nuances," in\ndetermining the relevant parcel where the landowner holds (or has previously held) other\nproperty in the vicinity. Loveladies, 28 F.3d at 1181. In this inquiry, the "critical issue is \'the\neconomic expectations of the claimant with regard to the property.\'" Norman v. United\nStates, 429 F.3d 1081, 1091 (Fed. Cir. 2005) (quoting Forest Props., Inc. v. United States,\n177 F.3d 1360, 1365 (Fed. Cir.1999)). When a "developer treats several legally distinct\nparcels as a single economic unit, together they may constitute the relevant parcel." Forest\nProps., 177 F.3d at 1365 (holding relevant parcel included 53 upland acres and 9 acres of\nlake bottom where tracts were acquired at different times but "economic reality" was that\nowner treated the property as single integrated project).\nConversely, even when contiguous land is purchased in a single transaction, the relevant\nparcel may be a subset of the original purchase where the owner develops distinct parcels\nat different times and treats the parcels as distinct economic units. Palm Beach Isles, 208\nF.3d at 1381 (holding relevant parcel consisted of 50.7 acre wetland portion of original\n311.7 acre purchase where landowner "never planned to develop the parcels as a single\nunit," and sold 261 acres of upland, oceanfront property prior to enactment of relevant\nregulatory scheme); Loveladies, 28 F.3d at 1181 (holding relevant parcel consisted of 12.5\nacres from original 250 acre purchase where landowner developed and sold 199 acres\nbefore regulatory scheme was enacted and deeded remaining 38.5 acres to state in\nexchange for development permits).\nHere, Lost Tree did not treat Plat 57 as part of the same economic unit as other land it\ndeveloped into the John\'s Island community. The trial court correctly found that Lost Tree\ndid not include Plat 57 in its formal or informal development plans for the community.\n* * * The only proposal that ever addressed Plat 57 was the unapproved 1980 Permit\nApplication. While the 1980 application proposed dedicating Plat 57 as a wildlife preserve\nto mitigate other development, Lost Tree withdrew that application. Thus, when the Corps\neventually granted Lost Tree\'s permit application, Plat 57 had no designated use.\nThe government argues Plat 57 was informally part of the John\'s Island development\nbecause Lost Tree intentionally included undeveloped land within the perimeter of its gated\ncommunity. Lost Tree advertised such "open spaces" as part of the unique environment\noffered by John\'s Island. However, Lost Tree expressly planned open spaces in its\n404\n\n\x0cdevelopment of the community, through the use of large lots for single family homes, and\ninclusion of golf courses and dedicated conservation wetlands. Lost Tree\'s failure to plan\nfor Plat 57 even as open space supports the trial court\'s conclusion that the parcel was\n"ignored"--rather than intentionally left undeveloped--when the company carried out the\nJohn\'s Island project. * * *\nLost Tree\'s actual course of development further demonstrates that it did not treat Plat 57\nas part of the John\'s Island community. Lost Tree did not seek a fill permit or run utility\nservice to the area that became Plat 57 when it developed the rest of Stingaree Point. Plat\n55, by contrast, was brought to grade and water and sewer lines were stubbed out to that\narea. Although the company did not immediately plat the land that became Plat 55, it\ndeveloped it in the mid-1980s in preparation for eventual sale as part of the John\'s Island\ncommunity. Plat 57, by contrast, was absent from Lost Tree\'s development plans until\n2002--at least seven years after the development of the John\'s Island community was\nconsidered complete. * * *\nIndeed, the record shows that after 1982, Lost Tree was essentially unaware of its\nownership of Plat 57 until the company prepared an inventory of its residual properties in\n1995. At that time, Lost Tree had already transitioned its business from real estate\ndevelopment to focus on investment in commercial properties. The company also was\nworking to divest itself of remaining real estate holdings in the vicinity of John\'s Island.\nWhen the Corps denied Lost Tree\'s \xc2\xa7 404 permit application in 2002, the company held\nonly the "West Acreage," which lies well outside the John\'s Island community, Plat 55, Plat\n57, and scattered wetlands within John\'s Island. The objective evidence of Lost Tree\'s\nactions demonstrates that the company considered the John\'s Island community completed\nlong before it proposed to fill wetlands on Plat 57. The company\'s long hiatus from\ndevelopment efforts reinforces the conclusion that Lost Tree did not consider Plat 57 part of\nthe same economic unit as the John\'s Island community.\nIn short, this court sees no error in the trial court\'s factual findings that "Lost Tree\'s belated\ndecision to develop Plat 57 was not part of its planned actual or projected use of the\nproperty constituting the community of John\'s Island." * * * This finding, however, conflicts\nwith the court\'s conclusion that the relevant parcel comprises not just Plat 57, but also Plat\n55 and "scattered wetlands still owned by Lost Tree within the community of John\'s Island."\n* * * Unlike Plat 57, Lost Tree treated Plat 55 as part of the John\'s Island community,\ndeveloping it for eventual sale as three single family home sites at the same time that it\ndeveloped Plat 40 on Stingaree Point.\nThe Court of Federal Claims erred by aggregating Plat 57, Plat 55, and the scattered\nwetlands as the relevant parcel. The only links between the two plats identified by the trial\ncourt are: 1) they are connected by the 323 foot strip of land owned by Lost Tree and\ntherefore "undoubtedly contiguous," and 2) both currently are held with the "usage\nobjective[ ] . . . to sell for profit the lots" on each plat. * * * Similarly, the scattered wetlands\n405\n\n\x0care only linked to Plat 57 by their geographic location within the gated community of John\'s\nIsland. Here, the mere fact that the properties are commonly owned and located in the\nsame vicinity is an insufficient basis on which to find they constitute a single parcel for\npurposes of the takings analysis. * * * Loveladies, 28 F.3d at 1180 (holding relevant parcel\nexcludes 6.4 acres of previously-developed uplands purchased in same transaction as\nregulated parcel and owned by claimant when \xc2\xa7 404 permit was denied).\nAfter a careful review of the entire record, this court determines that the relevant parcel is\nPlat 57 alone. The trial court\'s factual findings support the conclusion that Lost Tree had\ndistinct economic expectations for each of Plat 57, Plat 55, and its scattered wetland\nholdings in the vicinity. Because the Court of Federal Claims erred in its determination of\nthe relevant parcel, this court reverses the judgment and remands for further proceedings.\nOn remand, the court first should determine the loss in economic value to Plat 57 suffered\nby Lost Tree as a result of the Corps\' denial of the \xc2\xa7 404 permit, and then apply the\nappropriate framework to determine whether a compensable taking occurred. In\ndetermining the loss in value to Plat 57, the court may revisit the property values it adopted\nin the course of determining the impact of the Plat 57 permit denial on Lost Tree under its\ndefinition of the relevant parcel. * * *\nIV\nFor the reasons set forth above, the judgment of the Court of Federal Claims is reversed\nand remanded for further proceedings.\nQuestions and Comments\n1.\n\nThe Remand: On remand, the Court of Federal Claims concluded that the value of\nPlat 57 in light of the Corps\xe2\x80\x99 permit denial was $27,500, which the court\ncharacterized as \xe2\x80\x9ca nominal amount that does not reflect any economic use.\xe2\x80\x9d See\nLost Tree Village Corp. v. United States, No. 08-117L (Fed. Cl. 03/14/2014). Thus,\nthe court held that the Corps\xe2\x80\x99 action was a categorical taking under Lucas. Despite\nreaching that conclusion, the court also analyzed the Corps\xe2\x80\x99 action under the Penn\nCentral analysis. For purposes of that analysis, the court suggested that the 99.4%\nreduction in property value that resulted from the Corps\xe2\x80\x99 permit denial was a factor\nthat weighed in favor of finding a taking. Id. The court also suggested that the\ncharacter of the government action weighed in favor of finding a taking, because the\ncourt was persuaded that the landowner was singled out for adverse treatment in\nthe case, and that the Corps would have issued a permit for the proposed\ndevelopment if a different develop had applied for the permit. Id.\n\n2.\n\nStrategic Behavior: Justice Stevens, in a dissenting opinion in Lucas, predicted\nthat the Court\xe2\x80\x99s decision in that case could be manipulated in light of the lack of a\n406\n\n\x0cclear definition of the \xe2\x80\x9cparcel as a whole.\xe2\x80\x9d 505 U.S. at 1065. Stevens predicted,\n\xe2\x80\x9cdevelopers and investors may market specialized estates to take advantage of the\nCourt\xe2\x80\x99s new rule. The smaller the estate, the more likely that a regulatory change\nwill effect a total taking. Thus, an investor may, for example, purchase the right to\nbuild a multifamily home on a specific lot * * * \xe2\x80\x9d\nThe Supreme Court provided clarification regarding the manner in which courts should\ndetermine the extent of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d in the following case, decided in June 2017.\nMurr v. Wisconsin\n\nResources for the Case\n\n582 U.S. ___ (2017)\nJustice Kennedy delivered the opinion of the\nCourt.\n\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\nOral argument audio - from the Oyez Project\nPacific Legal Foundation website re: Murr\n\nThe classic example of a property taking by the government is when the property has been\noccupied or otherwise seized. In the case now before the Court, petitioners contend that\ngovernmental entities took their real property\xe2\x80\x94an undeveloped residential lot\xe2\x80\x94not by\nsome physical occupation but instead by enacting burdensome regulations that forbid its\nimprovement or separate sale because it is classified as substandard in size. The relevant\ngovernmental entities are the respondents.\nAgainst the background justifications for the challenged restrictions, respondents contend\nthere is no regulatory taking because petitioners own an adjacent lot. The regulations, in\neffecting a merger of the property, permit the continued residential use of the property\nincluding for a single improvement to extend over both lots. This retained right of the\nlandowner, respondents urge, is of sufficient offsetting value that the regulation is not\nsevere enough to be a regulatory taking. To resolve the issue whether the landowners can\ninsist on confining the analysis just to the lot in question, without regard to their ownership\nof the adjacent lot, it is necessary to discuss the background principles that define\nregulatory takings.\nI\nA\nThe St. Croix River originates in northwest Wisconsin and flows approximately 170 miles\nuntil it joins the Mississippi River, forming the boundary between Minnesota and Wisconsin\nfor much of its length. The lower portion of the river slows and widens to create a natural\n\n407\n\n\x0cwater area known as Lake St. Croix. Tourists and residents of the region have long extolled\nthe picturesque grandeur of the river and surrounding area. * * *\nUnder the Wild and Scenic Rivers Act, the river was designated, by 1972, for federal\nprotection. * * * The law required the States of Wisconsin and Minnesota to develop \xe2\x80\x9ca\nmanagement and development program\xe2\x80\x9d for the river area. * * * In compliance, Wisconsin\nauthorized the State Department of Natural Resources to promulgate rules limiting\ndevelopment in order to \xe2\x80\x9cguarantee the protection of the wild, scenic and recreational\nqualities of the river for present and future generations.\xe2\x80\x9d * * *\nPetitioners are two sisters and two brothers in the Murr family. Petitioners\xe2\x80\x99 parents arranged\nfor them to receive ownership of two lots the family used for recreation along the Lower St.\nCroix River in the town of Troy, Wisconsin. The lots are adjacent, but the parents\npurchased them separately, put the title of one in the name of the family business, and later\narranged for transfer of the two lots, on different dates, to petitioners. The lots, which are\nreferred to in this litigation as Lots E and F, are described in more detail below.\nFor the area where petitioners\xe2\x80\x99 property is located, the Wisconsin rules prevent the use of\nlots as separate building sites unless they have at least one acre of land suitable for\ndevelopment. * * * A grandfather clause relaxes this restriction for substandardlots which\nwere \xe2\x80\x9cin separate ownership from abutting lands\xe2\x80\x9d on January 1, 1976, the effective date of\nthe regulation. * * * The clause permits the use of qualifying lots as separate building sites.\nThe rules also include a merger provision, however, which provides that adjacent lots under\ncommon ownership may not be \xe2\x80\x9csold or developed as separate lots\xe2\x80\x9d if they do not meet the\nsize requirement. * * * The Wisconsin rules require localities to adopt parallel provisions,\n* * * so the St. Croix County zoning ordinance contains identical restrictions, * * * The\nWisconsin rules also authorize the local zoning authority to grant variances from the\nregulations where enforcement would create \xe2\x80\x9cunnecessary hardship.\xe2\x80\x9d * * *\nB\nPetitioners\xe2\x80\x99 parents purchased Lot F in 1960 and built a small recreational cabin on it. In\n1961, they transferred title to Lot F to the family plumbing company. In 1963, they\npurchased neighboring Lot E, which they held in their own names.\nThe lots have the same topography. A steep bluff cuts through the middle of each, with\nlevel land suitable for development above the bluff and next to the water below it. The line\ndividing Lot E from Lot F runs from the riverfront to the far end of the property, crossing the\nblufftop along the way. Lot E has approximately 60 feet of river frontage, and Lot F has\napproximately 100 feet. Though each lot is approximately 1.25 acres in size, because of\nthe waterline and the steep bank they each have less than one acre of land suitable for\ndevelopment. Even when combined, the lots\xe2\x80\x99 buildable land area is only 0.98 acres due to\nthe steep terrain.\n408\n\n\x0cThe lots remained under separate ownership, with Lot F owned by the plumbing company\nand Lot E owned by petitioners\xe2\x80\x99 parents, until transfers to petitioners. Lot F was conveyed\nto them in 1994, and Lot E was conveyed to them in 1995. * * (There are certain\nambiguities in the record concerning whether the lots had merged earlier, but the parties\nand the courts below appear to have assumed the merger occurred upon transfer to\npetitioners.)\nA decade later, petitioners became interested in moving the cabin on Lot F to a different\nportion of the lot and selling Lot E to fund the project. The unification of the lots under\ncommon ownership, however, had implicated the state and local rules barring their\nseparate sale or development. Petitioners then sought variances from the St. Croix County\nBoard of Adjustment to enable their building and improvement plan, including a variance to\nallow the separate sale or use of the lots. The Board denied the requests, and the state\ncourts affirmed in relevant part. In particular, the Wisconsin Court of Appeals agreed with\nthe Board\xe2\x80\x99s interpretation that the local ordinance \xe2\x80\x9ceffectively merged\xe2\x80\x9d Lots E and F, so\npetitioners \xe2\x80\x9ccould only sell or build on the single larger lot.\xe2\x80\x9d * * *\nPetitioners filed the present action in state court, alleging that the state and county\nregulations worked a regulatory taking by depriving them of \xe2\x80\x9call, or practically all, of the use\nof Lot E because the lot cannot be sold or developed as a separate lot.\xe2\x80\x9d * * * The parties\neach submitted appraisal numbers to the trial court. Respondents\xe2\x80\x99 appraisal included\nvalues of $698,300 for the lots together as regulated; $771,000 for the lots as two distinct\nbuildable properties; and $373,000 for Lot F as a single lot with improvements. * * *\nPetitioners\xe2\x80\x99 appraisal included an unrebutted, estimated value of $40,000 for Lot E as an\nundevelopable lot, based on the counterfactual assumption that it could be sold as a\nseparate property. * * *\nThe Circuit Court of St. Croix County granted summary judgment to the State, explaining\nthat petitioners retained \xe2\x80\x9cseveral available options for the use and enjoyment of their\nproperty.\xe2\x80\x9d * * * For example, they could preserve the existing cabin, relocate the cabin, or\neliminate the cabin and build a new residence on Lot E, on Lot F, or across both lots. The\ncourt also found petitioners had not been deprived of all economic value of their property.\nConsidering the valuation of the property as a single lot versus two separate lots, the court\nfound the market value of the property was not significantly affected by the regulations\nbecause the decrease in value was less than 10 percent. * * *\nThe Wisconsin Court of Appeals affirmed. The court explained that the regulatory takings\ninquiry required it to \xe2\x80\x9c \xe2\x80\x98first determine what, precisely, is the property at issue.\xe2\x80\x99 * * * Relying\non Wisconsin Supreme Court precedent * * * , the Court of Appeals rejected petitioners\xe2\x80\x99\nrequest to analyze the effect of the regulations on Lot E only. Instead, the court held the\ntakings analysis \xe2\x80\x9cproperly focused\xe2\x80\x9d on the regulations\xe2\x80\x99 effect \xe2\x80\x9con the Murrs\xe2\x80\x99 property as a\nwhole\xe2\x80\x9d\xe2\x80\x94that is, Lots E and F together. * * *\n\n409\n\n\x0cUsing this framework, the Court of Appeals concluded the merger regulations did not effect\na taking. In particular, the court explained that petitioners could not reasonably have\nexpected to use the lots separately because they were \xe2\x80\x9c \xe2\x80\x98charged with knowledge of the\nexisting zoning laws\xe2\x80\x99 \xe2\x80\x9d when they acquired the property. * * * Thus, \xe2\x80\x9ceven if [petitioners] did\nintend to develop or sell Lot E separately, that expectation of separate treatment became\nunreasonable when they chose to acquire Lot E in 1995, after their having acquired Lot F in\n1994.\xe2\x80\x9d * * * The court also discounted the severity of the economic impact on petitioners\xe2\x80\x99\nproperty, recognizing the Circuit Court\xe2\x80\x99s conclusion that the regulations diminished the\nproperty\xe2\x80\x99s combined value by less than 10 percent. The Supreme Court of Wisconsin\ndenied discretionary review. This Court granted certiorari * * *.\nII\n***\nB\nThis case presents a question that is linked to the ultimate determination whether a\nregulatory taking has occurred: What is the proper unit of property against which to assess\nthe effect of the challenged governmental action? Put another way, \xe2\x80\x9c[b]ecause our test for\nregulatory taking requires us to compare the value that has been taken from the property\nwith the value that remains in the property, one of the critical questions is determining how\nto define the unit of property \xe2\x80\x98whose value is to furnish the denominator of the fraction.\xe2\x80\x99 * * *\nDefining the property at the outset, however, should not necessarily preordain the outcome\nin every case. In some, though not all, cases the effect of the challenged regulation must\nbe assessed and understood by the effect on the entire property held by the owner, rather\nthan just some part of the property that, considered just on its own, has been diminished in\nvalue. This demonstrates the contrast between regulatory takings, where the goal is usually\nto determine how the challenged regulation affects the property\xe2\x80\x99s value to the owner, and\nphysical takings, where the impact of physical appropriation or occupation of the property\nwill be evident.\nWhile the Court has not set forth specific guidance on how to identify the relevant parcel for\nthe regulatory taking inquiry, there are two concepts which the Court has indicated can be\nunduly narrow.\nFirst, the Court has declined to limit the parcel in an artificial manner to the portion of\nproperty targeted by the challenged regulation. * * *\nThe second concept about which the Court has expressed caution is the view that property\nrights under the Takings Clause should be coextensive with those under state law.\nAlthough property interests have their foundations in state law, the Palazzolo Court\n410\n\n\x0creversed a state court decision that rejected a takings challenge to regulations that\npredated the landowner\xe2\x80\x99s acquisition of title. * * * The Court explained that States do not\nhave the unfettered authority to \xe2\x80\x9cshape and define property rights and reasonable\ninvestment-backed expectations,\xe2\x80\x9d leaving landowners without recourse against\nunreasonable regulations. * * *\nBy the same measure, defining the parcel by reference to state law could defeat a\nchallenge even to a state enactment that alters permitted uses of property in ways\ninconsistent with reasonable investment-backed expectations. For example, a State might\nenact a law that consolidates nonadjacent property owned by a single person or entity in\ndifferent parts of the State and then imposes development limits on the aggregate set. If a\ncourt defined the parcel according to the state law requiring consolidation, this improperly\nwould fortify the state law against a takings claim, because the court would look to the\nretained value in the property as a whole rather than considering whether individual\nholdings had lost all value.\nIII\nA\nAs the foregoing discussion makes clear, no single consideration can supply the exclusive\ntest for determining the denominator. Instead, courts must consider a number of factors.\nThese include the treatment of the land under state and local law; the physical\ncharacteristics of the land; and the prospective value of the regulated land. The endeavor\nshould determine whether reasonable expectations about property ownership would lead a\nlandowner to anticipate that his holdings would be treated as one parcel, or, instead, as\nseparate tracts. The inquiry is objective, and the reasonable expectations at issue derive\nfrom background customs and the whole of our legal tradition. * * *\nFirst, courts should give substantial weight to the treatment of the land, in particular how it\nis bounded or divided, under state and local law. The reasonable expectations of an\nacquirer of land must acknowledge legitimate restrictions affecting his or her subsequent\nuse and dispensation of the property. * * * A valid takings claim will not evaporate just\nbecause a purchaser took title after the law was enacted. See Palazzolo, 533 U. S., at 627\n(some \xe2\x80\x9cenactments are unreasonable and do not become less so through passage of time\nor title\xe2\x80\x9d). A reasonable restriction that predates a landowner\xe2\x80\x99s acquisition, however, can be\none of the objective factors that most landowners would reasonably consider in forming fair\nexpectations about their property. * * * In a similar manner, a use restriction which is\ntriggered only after, or because of, a change in ownership should also guide a court\xe2\x80\x99s\nassessment of reasonable private expectations.\nSecond, courts must look to the physical characteristics of the landowner\xe2\x80\x99s property. These\ninclude the physical relationship of any distinguishable tracts, the parcel\xe2\x80\x99s topography, and\n411\n\n\x0cthe surrounding human and ecological environment. In particular, it may be relevant that\nthe property is located in an area that is subject to, or likely to become subject to,\nenvironmental or other regulation. Cf. Lucas, 505 U.S. at 1035 (Kennedy, J., concurring)\n(\xe2\x80\x9cCoastal property may present such unique concerns for a fragile land system that the\nState can go further in regulating its development and use than the common law of\nnuisance might otherwise permit\xe2\x80\x9d).\nThird, courts should assess the value of the property under the challenged regulation, with\nspecial attention to the effect of burdened land on the value of other holdings. Though a\nuse restriction may decrease the market value of the property, the effect may be tempered\nif the regulated land adds value to the remaining property, such as by increasing privacy,\nexpanding recreational space, or preserving surrounding natural beauty. A law that limits\nuse of a landowner\xe2\x80\x99s small lot in one part of the city by reason of the landowner\xe2\x80\x99s\nnonadjacent holdings elsewhere may decrease the market value of the small lot in an\nunmitigated fashion. The absence of a special relationship between the holdings may\ncounsel against consideration of all the holdings as a single parcel, making the restrictive\nlaw susceptible to a takings challenge. On the other hand, if the landowner\xe2\x80\x99s other property\nis adjacent to the small lot, the market value of the properties may well increase if their\ncombination enables the expansion of a structure, or if development restraints for one part\nof the parcel protect the unobstructed skyline views of another part. That, in turn, may\ncounsel in favor of treatment as a single parcel and may reveal the weakness of a\nregulatory takings challenge to the law.\nState and federal courts have considerable experience in adjudicating regulatory takings\nclaims that depart from these examples in various ways. The Court anticipates that in\napplying the test above they will continue to exercise care in this complex area.\n***\nIV\nUnder the appropriate multifactor standard, it follows that for purposes of determining\nwhether a regulatory taking has occurred here, petitioners\xe2\x80\x99 property should be evaluated as\na single parcel consisting of Lots E and F together.\nFirst, the treatment of the property under state and local law indicates petitioners\xe2\x80\x99 property\nshould be treated as one when considering the effects of the restrictions. As the Wisconsin\ncourts held, the state and local regulations merged Lots E and F. * * * The decision to\nadopt the merger provision at issue here was for a specific and legitimate purpose,\nconsistent with the widespread understanding that lot lines are not dominant or controlling\nin every case. * * * Petitioners\xe2\x80\x99 land was subject to this regulatory burden, moreover, only\nbecause of voluntary conduct in bringing the lots under common ownership after the\n\n412\n\n\x0cregulations were enacted. As a result, the valid merger of the lots under state law informs\nthe reasonable expectation they will be treated as a single property.\nSecond, the physical characteristics of the property support its treatment as a unified\nparcel. The lots are contiguous along their longest edge. Their rough terrain and narrow\nshape make it reasonable to expect their range of potential uses might be limited. * * *\n(\xe2\x80\x9c[Petitioners] asserted Lot E could not be put to alternative uses like agriculture or\ncommerce due to its size, location and steep terrain\xe2\x80\x9d). The land\xe2\x80\x99s location along the river is\nalso significant. Petitioners could have anticipated public regulation might affect their\nenjoyment of their property, as the Lower St. Croix was a regulated area under federal,\nstate, and local law long before petitioners possessed the land.\nThird, the prospective value that Lot E brings to Lot F supports considering the two as one\nparcel for purposes of determining if there is a regulatory taking. Petitioners are prohibited\nfrom selling Lots E and F separately or from building separate residential structures on\neach. Yet this restriction is mitigated by the benefits of using the property as an integrated\nwhole, allowing increased privacy and recreational space, plus the optimal location of any\nimprovements. * * * (\xe2\x80\x9cThey have an elevated level of privacy because they do not have\nclose neighbors and are able to swim and play volleyball at the property\xe2\x80\x9d).\nThe special relationship of the lots is further shown by their combined valuation. Were Lot E\nseparately saleable but still subject to the development restriction, petitioners\xe2\x80\x99 appraiser\nwould value the property at only $40,000. We express no opinion on the validity of this\nfigure. We also note the number is not particularly helpful for understanding petitioners\xe2\x80\x99\nretained value in the properties because Lot E, under the regulations, cannot be sold\nwithout Lot F. The point that is useful for these purposes is that the combined lots are\nvalued at $698,300, which is far greater than the summed value of the separate regulated\nlots (Lot F with its cabin at $373,000, according to respondents\xe2\x80\x99 appraiser, and Lot E as an\nundevelopable plot at $40,000, according to petitioners\xe2\x80\x99 appraiser). The value added by the\nlots\xe2\x80\x99 combination shows their complementarity and supports their treatment as one parcel.\nThe State Court of Appeals was correct in analyzing petitioners\xe2\x80\x99 property as a single unit.\nPetitioners allege that in doing so, the state court applied a categorical rule that all\ncontiguous, commonly owned holdings must be combined for Takings Clause analysis. * * *\nThis does not appear to be the case, however, for the precedent relied on by the Court of\nAppeals addressed multiple factors before treating contiguous properties as one parcel.\n* * * The judgment below, furthermore, may be affirmed on any ground permitted by the law\nand record. See Thigpen v. Roberts, 468 U. S. 27, 30 (1984). To the extent the state court\ntreated the two lots as one parcel based on a bright-line rule, nothing in this opinion\napproves that methodology, as distinct from the result.\nConsidering petitioners\xe2\x80\x99 property as a whole, the state court was correct to conclude that\npetitioners cannot establish a compensable taking in these circumstances. Petitioners have\n413\n\n\x0cnot suffered a taking under Lucas, as they have not been deprived of all economically\nbeneficial use of their property. * * * They can use the property for residential purposes,\nincluding an enhanced, larger residential improvement. * * * . The property has not lost all\neconomic value, as its value has decreased by less than 10 percent. * * *\nPetitioners furthermore have not suffered a taking under the more general test of Penn\nCentral. * * * The expert appraisal relied upon by the state courts refutes any claim that the\neconomic impact of the regulation is severe. Petitioners cannot claim that they reasonably\nexpected to sell or develop their lots separately given the regulations which predated their\nacquisition of both lots. Finally, the governmental action was a reasonable land-use\nregulation, enacted as part of a coordinated federal, state, and local effort to preserve the\nriver and surrounding land.\nLike the ultimate question whether a regulation has gone too far, the question of the proper\nparcel in regulatory takings cases cannot be solved by any simple test. * * * Courts must\ninstead define the parcel in a manner that reflects reasonable expectations about the\nproperty. Courts must strive for consistency with the central purpose of the Takings Clause:\nto \xe2\x80\x9cbar Government from forcing some people alone to bear public burdens which, in all\nfairness and justice, should be borne by the public as a whole.\xe2\x80\x9d * * * Treating the lot in\nquestion as a single parcel is legitimate for purposes of this takings inquiry, and this\nsupports the conclusion that no regulatory taking occurred here.\nThe judgment of the Wisconsin Court of Appeals is affirmed.\nIt is so ordered.\n\nQuestions and Comments\n1.\n\nFederal Circuit Precedent: In cases such as Lost Tree Village, supra, the Federal\nCircuit focused heavily on \xe2\x80\x9cthe economic expectations of the claimant with regard to\nthe property\xe2\x80\x9d in determining how to identify the \xe2\x80\x9cparcel as a whole.\xe2\x80\x9d That approach\naccords property owners with significant control over the manner in which the parcel\nis defined for takings analysis. Is it likely that the Federal Circuit can continue to\nfocus as heavily on the landowners\xe2\x80\x99 economic expectations in determining the\nextent of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d after Murr?\n\n2.\n\nState property law: In a footnote in Lucas, the Supreme Court suggested that the\nmanner in which courts determine the extent of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d \xe2\x80\x9cmay lie in\nhow the owner\xe2\x80\x99s reasonable expectations have been shaped by the State\xe2\x80\x99s law of\nproperty \xe2\x80\x93 i.e., whether and to what degree the State\xe2\x80\x99s law has accorded legal\nrecognition and protection to the particular interest in land with respect to which the\n414\n\n\x0ctakings claimant alleges a diminution in (or elimination of) value.\xe2\x80\x9d Is the Court\xe2\x80\x99s\ndecision in Murr based simply on the fact that the two lots owned by the petitioners\nwere merged for purposes of redevelopment under the State\xe2\x80\x99s property laws? What\nproblems might be raised by relying solely on the State\xe2\x80\x99s property laws to define the\nextent of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d? Petitioners argued that the Court should adopt a\nbright line test for determining the extent of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d based simply on\nthe lot lines established for the two parcels under state law. Justice Roberts, in a\ndissenting opinion, agreed. What are the flaws with that approach in a case like\nthis? Does the Court\xe2\x80\x99s multi-factor test give governments too much power to shape\nthe contours of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d for takings purposes to reduce the likelihood\nthat compensation will be due?\n3.\n\nPhysical characteristics / conservation: One of the three factors identified by the\nCourt as relevant for determining the extent of the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d was the\nphysical characteristics of the property, including whether it is located in an area that\nis subject to, or likely to become subject to, environmental or other regulation. How\nmight this impact the ability of landowners to prevail in future takings cases\nchallenging environmental restrictions on land use?\n\n4.\n\nReciprocity of advantage: In analyzing the third factor of its \xe2\x80\x9cparcel as a whole\xe2\x80\x9d\ntest, the Court suggests that \xe2\x80\x9ccourts should assess the value of the property under\nthe challenged regulation, with special attention to the effect of burdened land on the\nvalue of other holdings.\xe2\x80\x9d This is a factor that courts also consider in the multi-factor\nPenn Central analysis, after the \xe2\x80\x9cparcel as a whole\xe2\x80\x9d is identified, to determine\nwhether government regulation has \xe2\x80\x9cgone too far\xe2\x80\x9d, so that the government must pay\nthe landowner compensation for a takingJustice Roberts, in dissent, argues that the\nmajority\xe2\x80\x99s decision allows the government to stack the deck against landowners by\nfocusing on the purposes of the government\xe2\x80\x99s regulation in both the \xe2\x80\x9cparcel as a\nwhole\xe2\x80\x9d analysis and in the Penn Central takings analysis.\n\n5.\n\nJustice Thomas\xe2\x80\x99 dissent: In a solo dissenting opinion that adopts an extreme\nconstitutional position, Justice Thomas questioned whether the Takings Clause,\nbased on the drafters\xe2\x80\x99 original intent, should be limited to physical appropriation\ncases and whether it is more appropriate to analyze regulatory restrictions on land\nuse under the Fifth and Fourteenth Amendments.\n\n415\n\n\x0cHypothetical\nToby Mercer bought 100 acres of land in Monroe County, Georgia in 1970 from Lucy Tift for\n$100,000. Lucy sold the land, the Tift\'s family farm, when her father, Herschel, died. In 1985,\nMercer subdivided the property into 75 lots, ranging in size from \xc2\xbd acre to 2 acres, and a 10\nacre lot, which he planned to set aside as a nature preserve for the subdivision. Between\n1985 and 1998, Mercer developed or sold all of the lots, other than the 10 acre lot, for $1.5\nmillion. In 2008, he decided to develop the remaining 10 acre lot. At that time, he subdivided\nthe lot into 10 lots, ranging in size from \xc2\xbd acre to an acre, and a 2 acre lot. He sold the 10\nlots for $200,000 and sought a Clean Water Act Section 404 permit from the Corps of\nEngineers to fill the entire 2 acres of wetlands on the remaining lot, in order to build a house\non the property.\nDuring the public hearings on Mercer\'s proposal, Maggie Green vigorously protested the\npermit because she owned an organic farm on the property adjacent to Mercer\'s property\nand Mercer\'s proposal to fill the wetlands on his property would greatly increase flooding on\nher property and destroy her farm. Although Mercer and the Corps discussed other\ndevelopment options that would impact fewer acres of wetlands, the Corps ultimately told\nMercer that they would not authorize him to fill any of the wetlands on his property, and they\ndenied his permit application.\nMercer is upset because the property can now only be used as a nature preserve. A realtor\nhe retained has indicated that the property is worth about $8,000, but would be worth about\n$130,000, if he could build a house on the property. Mercer files a lawsuit against the Corps\nof Engineers in the U.S. Court of Federal Claims, alleging that the denial of his permit\napplication constitutes a taking of his property. Should the court award Mercer compensation\nfor a taking of his property?\n\nV.\n\nMitigation, Permit Conditions and Exactions\n\nAlthough most takings challenges in the wetlands context involve permit denials, conditions\nincluded in a permit, such as mitigation requirements, can also be challenged as takings\nbased on a line of Supreme Court decisions that prohibit \xe2\x80\x9cexactions\xe2\x80\x9d takings. In Nollan v.\nCalifornia Coastal Commission, 483 U.S. 825, 836-37 (1987), when a landowner\nchallenged the California Coastal Commission\xe2\x80\x99s decision to require the landowner to\nprovide an easement for public beach access as a condition of approving a permit to allow\nconstruction of a house on the beach, the Supreme Court held that there must be an\n\xe2\x80\x9cessential nexus\xe2\x80\x9d between a legitimate state interest and a condition imposed in a permit or\nthe permit condition will constitute a taking. The Court began its analysis by indicating that\nif California had simply required the Nollans to provide an easement for public access\noutside of the permitting context, it would clearly constitute a taking of property. Id. at 831.\nAt the same time, the Court recognized that the state could deny the Nollan\xe2\x80\x99s development\npermit without facing a constitutional challenge if the permit denial substantially advanced a\n416\n\n\x0clegitimate state interest. Id. at 835-836. Consequently, the Court held that the state could\ninclude conditions in the permit that serve the same legitimate purpose without violating the\nConstitution. Id. at 836. The Court\xe2\x80\x99s decision seemed to be based, in part, on the Court\xe2\x80\x99s\nholding, in Agins v. City of Tiburon, that a regulation can be a taking if it does not\nsubstantially advance a legitimate state interest.\nA few years later, the Supreme Court returned to the exactions issue in Dolan v. City of\nTigard, 512 U.S. 374 (1994). In that case, a landowner challenged the decision of the city\nplanning commission, when approving the expansion of her store and paving of the parking\nlot for the store, to condition the approval on dedication of land for a greenway and a bike\npath. Id. The Court reiterated the \xe2\x80\x9cessential nexus\xe2\x80\x9d requirement of Nollan, but added a\nrequirement that the permit issuer must make an individualized determination that the\npermit condition is \xe2\x80\x9crelated both in nature and extent to the impact of the proposed\ndevelopment.\xe2\x80\x9d Id. at 391. The Court required that the condition must be \xe2\x80\x9croughly\nproportional\xe2\x80\x9d to the impact of the proposed development. Id. Rather than simply citing\nAgins as authority for the new takings limits, the Dolan Court based its holding on the\n\xe2\x80\x9cunconstitutional conditions\xe2\x80\x9d doctrine, which provides that \xe2\x80\x9cthe government may not require\na person to give up a constitutional right - here the right to receive just compensation when\nproperty is taken for a public use - in exchange for a discretionary benefit where the benefit\nsought has little or no relationship to the property.\xe2\x80\x9d Id. at 385.\nIn light of Nollan and Dolan, when a permit condition is challenged as an unconstitutional\ntaking, the government has the burden of demonstrating that there is an essential nexus\nbetween the permit condition and a legitimate state objective and that the condition is\nroughly proportional to the impact of the proposed development. Although the Supreme\nCourt held, in Lingle v. Chevron, 544 U.S. 528 (2005), that the \xe2\x80\x9csubstantially advances a\nlegitimate state interest\xe2\x80\x9d requirement in Agins was based on the process clause, rather\nthan the takings clause, the Lingle Court held that its holding did not require it to disturb the\nholdings in Nollan and Dolan. Id.\nIn the wetlands context, the government should normally be able to meet the requirements\nof Nollan and Dolan when including conditions in Section 404 permits. When the Corps or\nEPA include conditions in permits to minimize harm to wetlands or to require compensatory\nmitigation for such harm, there is an \xe2\x80\x9cessential nexus\xe2\x80\x9d between those conditions and the\nlegitimate government interest in protecting water quality and the environment. With\nmitigation conditions especially, the government makes an individualized determination of\nthe amount and type of mitigation that are necessary to compensate for the values and\nfunctions of the wetlands that will be lost due to the development activity authorized by the\npermit. In most cases, therefore, this individualized analysis should meet the \xe2\x80\x9crough\nproportionality\xe2\x80\x9d requirement of Dolan.\n\n417\n\n\x0cQuestions and Comments\n1.\n\nMitigation Ratios: As discussed in Chapter 7, the ratio of mitigation acreage that\nthe government will require compared to the acreage of wetlands harmed by an\nactivity authorized by a Section 404 permit will vary depending on whether the\nmitigation involves creation, restoration, enhancement, or preservation of wetlands,\nand depending on the location and type of wetlands being harmed and being\nprotected. Although the mitigation ratios will vary, the goal of the government in\nfashioning the mitigation requirements is to replace the values and functions of the\nwetlands that are being harmed. As long as the government can demonstrate those\nconnections in litigation, the mitigation requirements should meet the \xe2\x80\x9cessential\nnexus\xe2\x80\x9d and \xe2\x80\x9crough proportionality\xe2\x80\x9d tests.\n\n2.\n\nMitigation Banking and In Lieu Fee Mitigation: Mitigation banking may involve\nprotection of different types of wetlands than the wetlands that are harmed by\ndevelopment authorized by a Section 404 permit and will usually involve protection\nof wetlands that are not located at the site of the development project. Is it harder to\ndefend mitigation banking conditions in a wetland permit under the Nollan and Dolan\ntests than it would be to defend a condition that required on-site, in-kind mitigation?\nWhat if the mitigation bank was authorized to issue mitigation credits in watersheds\nother than the watershed where the permitted activity occurred? Are there concerns\nraised by in lieu fee mitigation permit conditions that are not raised by mitigation\nbanking or on-site, in-kind mitigation?\n\n3.\n\nBurden of Proof: When the Corps of Engineers denies a Section 404 permit or\nEPA vetoes a Section 404 permit, the landowner, in a takings action, has the burden\nof demonstrating that the government\xe2\x80\x99s action has \xe2\x80\x9cgone too far\xe2\x80\x9d under the Penn\nCentral analysis. Note, though, that when a landowner challenges the conditions\nincluded in a permit issued by the government, the government has the burden of\ndemonstrating that the conditions meet the \xe2\x80\x9cessential nexus\xe2\x80\x9d and \xe2\x80\x9crough\nproportionality\xe2\x80\x9d requirements.\n\n4.\n\nProfessor Timothy M. Mulvaney explores the constitutional constraints on the ability\nof local governments to attach conditions to land use permits to address future\ncumulative impacts of the proposed development in Exactions for the Future, 64\nBaylor L. Rev. 511 (2012).\n\n5.\n\nScope of Nollan and Dolan: The Supreme Court\xe2\x80\x99s rulings in Nollan and Dolan both\ninvolved cases where a government entity required a landowner to provide public\naccess to their property as a condition for approval of a permit or development\nproposal. The following case examines whether Nollan and Dolan apply when the\ngovernment denies a permit or approval because the landowner won\xe2\x80\x99t agree to a\npermit condition and whether they apply to conditions that do not involve requiring\n418\n\n\x0cpublic access to property.\nKoontz v. Saint John\xe2\x80\x99s River Water Management District\n133 S. Ct. 2586 (2013)\nJustice Alito delivered the opinion of the\nCourt.\n\nResources for the Case\nUnedited opinion (From Justia)\nGoogle Map of all the cases in the coursebook\nOral argument audio - from the Oyez Project\nLecture on the case by Tim Mulvaney (Texas A&M\nLaw)\nOrange County Property Records for property\nPacific Legal Foundation website re: Koontz\n\nOur decisions in Nollan v. California Coastal Comm\xe2\x80\x99n, 483 U.S. 825 (1987), and Dolan v.\nCity of Tigard, 512 U.S. 374 (1994), provide important protection against the misuse of the\npower of land-use regulation. In those cases, we held that a unit of government may not\ncondition the approval of a land-use permit on the owner\xe2\x80\x99s relinquishment of a portion of his\nproperty unless there is a \xe2\x80\x9cnexus\xe2\x80\x9d and \xe2\x80\x9crough proportionality\xe2\x80\x9d between the government\xe2\x80\x99s\ndemand and the effects of the proposed land use. In this case, the St. Johns River Water\nManagement District (District) believes that it circumvented Nollan and Dolan because of\nthe way in which it structured its handling of a permit application submitted by Coy Koontz,\nSr., whose estate is represented in this Court by Coy Koontz, Jr. * * * The District did not\napprove his application on the condition that he surrender an interest in his land. Instead,\nthe District, after suggesting that he could obtain approval by signing over such an interest,\ndenied his application because he refused to yield. The Florida Supreme Court blessed this\nmaneuver and thus effectively interred those important decisions. Because we conclude\nthat Nollan and Dolan cannot be evaded in this way, the Florida Supreme Court\xe2\x80\x99s decision\nmust be reversed.\n\n419\n\n\x0cI\nA\nIn 1972, petitioner purchased an undeveloped 14.9-acre tract of land on the south side of\nFlorida State Road 50, a divided four-lane highway east of Orlando. The property is located\nless than 1,000 feet from that road\xe2\x80\x99s intersection with Florida State Road 408, a tolled\nexpressway that is one of Orlando\xe2\x80\x99s major thoroughfares.\nA drainage ditch runs along the property\xe2\x80\x99s western edge, and high-voltage power lines\nbisect it into northern and southern sections. The combined effect of the ditch, a 100 foot\nwide area kept clear for the power lines, the highways, and other construction on nearby\nparcels is to isolate the northern section of petitioner\xe2\x80\x99s property from any other\nundeveloped land. Although largely classified as wetlands by the State, the northern\nsection drains well; the most significant standing water forms in ruts in an unpaved road\nused to access the power lines. The natural topography of the property\xe2\x80\x99s southern section\nis somewhat more diverse, with a small creek, forested uplands, and wetlands that\nsometimes have water as much as a foot deep. A wildlife survey found evidence of animals\nthat often frequent developed areas: raccoons, rabbits, several species of bird, and a turtle.\nThe record also indicates that the land may be a suitable habitat for opossums.\nThe same year that petitioner purchased his property, Florida enacted the Water\nResources Act, which divided the State into five water management districts and authorized\neach district to regulate \xe2\x80\x9cconstruction that connects to, draws water from, drains water into,\nor is placed in or across the waters in the state.\xe2\x80\x9d * * * Under the Act, a landowner wishing to\nundertake such construction must obtain from the relevant district a Management and\nStorage of Surface Water (MSSW) permit, which may impose \xe2\x80\x9csuch reasonable conditions\xe2\x80\x9d\non the permit as are \xe2\x80\x9cnecessary to assure\xe2\x80\x9d that construction will \xe2\x80\x9cnot be harmful to the\nwater resources of the district.\xe2\x80\x9d * * *\nIn 1984, in an effort to protect the State\xe2\x80\x99s rapidly diminishing wetlands, the Florida\nLegislature passed the Warren S. Henderson Wetlands Protection Act, which made it illegal\nfor anyone to \xe2\x80\x9cdredge or fill in, on, or over surface waters\xe2\x80\x9d without a Wetlands Resource\nManagement (WRM) permit. * * * Under the Henderson Act, permit applicants are required\nto provide \xe2\x80\x9creasonable assurance\xe2\x80\x9d that proposed construction on wetlands is \xe2\x80\x9cnot contrary\nto the public interest,\xe2\x80\x9d as defined by an enumerated list of criteria. * * * Consistent with the\nHenderson Act, the St. Johns River Water Management District, the district with jurisdiction\nover petitioner\xe2\x80\x99s land, requires that permit applicants wishing to build on wetlands offset the\nresulting environmental damage by creating, enhancing, or preserving wetlands elsewhere.\nPetitioner decided to develop the 3.7-acre northern section of his property, and in 1994 he\napplied to the District for MSSW and WRM permits. Under his proposal, petitioner would\nhave raised the elevation of the northernmost section of his land to make it suitable for a\n420\n\n\x0cbuilding, graded the land from the southern edge of the building site down to the elevation\nof the high-voltage electrical lines, and installed a dry-bed pond for retaining and gradually\nreleasing stormwater runoff from the building and its parking lot. To mitigate the\nenvironmental effects of his proposal, petitioner offered to foreclose any possible future\ndevelopment of the approximately 11acre southern section of his land by deeding to the\nDistrict a conservation easement on that portion of his property.\nThe District considered the 11 acre conservation easement to be inadequate, and it\ninformed petitioner that it would approve construction only if he agreed to one of two\nconcessions. First, the District proposed that petitioner reduce the size of his development\nto 1 acre and deed to the District a conservation easement on the remaining 13.9 acres. To\nreduce the development area, the District suggested that petitioner could eliminate the drybed pond from his proposal and instead install a more costly subsurface stormwater\nmanagement system beneath the building site. The District also suggested that petitioner\ninstall retaining walls rather than gradually sloping the land from the building site down to\nthe elevation of the rest of his property to the south.\nIn the alternative, the District told petitioner that he could proceed with the development as\nproposed, building on 3.7 acres and deeding a conservation easement to the government\non the remainder of the property, if he also agreed to hire contractors to make\nimprovements to District-owned land several miles away. Specifically, petitioner could pay\nto replace culverts on one parcel or fill in ditches on another. Either of those projects would\nhave enhanced approximately 50 acres of District-owned wetlands. When the District asks\npermit applicants to fund offsite mitigation work, its policy is never to require any particular\noffsite project, and it did not do so here. Instead, the District said that it \xe2\x80\x9cwould also\nfavorably consider\xe2\x80\x9d alternatives to its suggested offsite mitigation projects if petitioner\nproposed something \xe2\x80\x9cequivalent.\xe2\x80\x9d * * *\nBelieving the District\xe2\x80\x99s demands for mitigation to be excessive in light of the environmental\neffects that his building proposal would have caused, petitioner filed suit in state court.\nAmong other claims, he argued that he was entitled to relief under Fla. Stat. \xc2\xa7 373.617(2),\nwhich allows owners to recover \xe2\x80\x9cmonetary damages\xe2\x80\x9d if a state agency\xe2\x80\x99s action is \xe2\x80\x9can\nunreasonable exercise of the state\xe2\x80\x99s police power constituting a taking without just\ncompensation.\xe2\x80\x9d * * *\nII\nA\nWe have said in a variety of contexts that \xe2\x80\x9cthe government may not deny a benefit to a\nperson because he exercises a constitutional right.\xe2\x80\x9d * * *\nNollan and Dolan \xe2\x80\x9cinvolve a special application\xe2\x80\x9d of this doctrine that protects the Fifth\n421\n\n\x0cAmendment right to just compensation for property the government takes when owners\napply for land-use permits. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 547 (2005); Dolan,\n512 U.S., at 385 (invoking \xe2\x80\x9cthe well-settled doctrine of \xe2\x80\x98unconstitutional conditions\xe2\x80\x99\xe2\x80\x9d). Our\ndecisions in those cases reflect two realities of the permitting process. The first is that landuse permit applicants are especially vulnerable to the type of coercion that the\nunconstitutional conditions doctrine prohibits because the government often has broad\ndiscretion to deny a permit that is worth far more than property it would like to take. By\nconditioning a building permit on the owner\xe2\x80\x99s deeding over a public right-of- way, for\nexample, the government can pressure an owner into voluntarily giving up property for\nwhich the Fifth Amendment would otherwise require just compensation. * * * So long as\nthe building permit is more valuable than any just compensation the owner could hope to\nreceive for the right-of-way, the owner is likely to accede to the government\xe2\x80\x99s demand, no\nmatter how unreasonable. Extortionate demands of this sort frustrate the Fifth Amendment\nright to just compensation, and the unconstitutional conditions doctrine prohibits them.\nA second reality of the permitting process is that many proposed land uses threaten to\nimpose costs on the public that dedications of property can offset. Where a building\nproposal would substantially increase traffic congestion, for example, officials might\ncondition permit approval on the owner\xe2\x80\x99s agreement to deed over the land needed to widen\na public road. Respondent argues that a similar rationale justifies the exaction at issue\nhere: petitioner\xe2\x80\x99s proposed construction project, it submits, would destroy wetlands on his\nproperty, and in order to compensate for this loss, respondent demands that he enhance\nwetlands elsewhere. Insisting that landowners internalize the negative externalities of their\nconduct is a hallmark of responsible land-use policy, and we have long sustained such\nregulations against constitutional attack. * * *\nNollan and Dolan accommodate both realities by allowing the government to condition\napproval of a permit on the dedication of property to the public so long as there is a \xe2\x80\x9cnexus\xe2\x80\x9d\nand \xe2\x80\x9crough proportionality\xe2\x80\x9d between the property that the government demands and the\nsocial costs of the applicant\xe2\x80\x99s proposal. * * * Our precedents thus enable permitting\nauthorities to insist that applicants bear the full costs of their proposals while still forbidding\nthe government from engaging in \xe2\x80\x9cout-and-out . . . extortion\xe2\x80\x9d that would thwart the Fifth\nAmendment right to just compensation. * * * Under Nollan and Dolan the government may\nchoose whether and how a permit applicant is required to mitigate the impacts of a\nproposed development, but it may not leverage its legitimate interest in mitigation to pursue\ngovernmental ends that lack an essential nexus and rough proportionality to those impacts.\nB\nThe principles that undergird our decisions in Nollan and Dolan do not change depending\non whether the government approves a permit on the condition that the applicant turn over\nproperty or denies a permit because the applicant refuses to do so. We have often\nconcluded that denials of governmental benefits were impermissible under the\n422\n\n\x0cunconstitutional conditions doctrine. * * * In so holding, we have recognized that regardless\nof whether the government ultimately succeeds in pressuring someone into forfeiting a\nconstitutional right, the unconstitutional conditions doctrine forbids burdening the\nConstitution\xe2\x80\x99s enumerated rights by coercively withholding benefits from those who\nexercise them.\nA contrary rule would be especially untenable in this case because it would enable the\ngovernment to evade the limitations of Nollan and Dolan simply by phrasing its demands\nfor property as conditions precedent to permit approval. Under the Florida Supreme Court\xe2\x80\x99s\napproach, a government order stating that a permit is \xe2\x80\x9capproved if\xe2\x80\x9d the owner turns over\nproperty would be subject to Nollan and Dolan, but an identical order that uses the words\n\xe2\x80\x9cdenied until\xe2\x80\x9d would not. Our unconstitutional conditions cases have long refused to attach\nsignificance to the distinction between conditions precedent and conditions subsequent.\nSee Frost & Frost Trucking Co. v. Railroad Comm\xe2\x80\x99n of Cal., 271 U.S. 583 \xe2\x80\x93593 (1926)\n(invalidating regulation that required the petitioner to give up a constitutional right \xe2\x80\x9cas a\ncondition precedent to the enjoyment of a privilege\xe2\x80\x9d); Southern Pacific Co. v. Denton, 146\nU.S. 202, 207 (1892) (invalidating statute \xe2\x80\x9crequiring the corporation, as a condition\nprecedent to obtaining a permit to do business within the State, to surrender a right and\nprivilege secured to it by the Constitution\xe2\x80\x9d). * * * To do so here would effectively render\nNollan and Dolan a dead letter.\nThe Florida Supreme Court puzzled over how the government\xe2\x80\x99s demand for property can\nviolate the Takings Clause even though \xe2\x80\x9c \xe2\x80\x98no property of any kind was ever taken,\xe2\x80\x99 \xe2\x80\x9d * * *\nbut the unconstitutional conditions doctrine provides a ready answer. Extortionate demands\nfor property in the land-use permitting context run afoul of the Takings Clause not because\nthey take property but because they impermissibly burden the right not to have property\ntaken without just compensation. As in other unconstitutional conditions cases in which\nsomeone refuses to cede a constitutional right in the face of coercive pressure, the\nimpermissible denial of a governmental benefit is a constitutionally cognizable injury.\nNor does it make a difference, as respondent suggests, that the government might have\nbeen able to deny petitioner\xe2\x80\x99s application outright without giving him the option of securing\na permit by agreeing to spend money to improve public lands. See Penn Central Transp.\nCo. v. New York City, 438 U.S. 104 (1978). Virtually all of our unconstitutional conditions\ncases involve a gratuitous governmental benefit of some kind. * * * Yet we have repeatedly\nrejected the argument that if the government need not confer a benefit at all, it can withhold\nthe benefit because someone refuses to give up constitutional rights. E.g., United States v.\nAmerican Library Assn., Inc., 539 U.S. 194, 210 (2003) (\xe2\x80\x9c[T]he government may not deny a\nbenefit to a person on a basis that infringes his constitutionally protected . . . freedom of\nspeech even if he has no entitlement to that benefit\xe2\x80\x9d (emphasis added and internal\nquotation marks omitted)); Wieman v. Updegraff, 344 U.S. 183, 191 (1952) (explaining in\nunconstitutional conditions case that to focus on \xe2\x80\x9cthe facile generalization that there is no\nconstitutionally protected right to public employment is to obscure the issue\xe2\x80\x9d). Even if\n423\n\n\x0crespondent would have been entirely within its rights in denying the permit for some other\nreason, that greater authority does not imply a lesser power to condition permit approval on\npetitioner\xe2\x80\x99s forfeiture of his constitutional rights. See Nollan, 483 U.S., at 836\xe2\x80\x93837\n(explaining that \xe2\x80\x9c[t]he evident constitutional propriety\xe2\x80\x9d of prohibiting a land use \xe2\x80\x9cdisappears\n. . . if the condition substituted for the prohibition utterly fails to further the end advanced as\nthe justification for the prohibition\xe2\x80\x9d).\nThat is not to say, however, that there is no relevant difference between a consummated\ntaking and the denial of a permit based on an unconstitutionally extortionate demand.\nWhere the permit is denied and the condition is never imposed, nothing has been taken.\nWhile the unconstitutional conditions doctrine recognizes that this burdens a constitutional\nright, the Fifth Amendment mandates a particular remedy\xe2\x80\x94just compensation\xe2\x80\x94only for\ntakings. In cases where there is an excessive demand but no taking, whether money\ndamages are available is not a question of federal constitutional law but of the cause of\naction\xe2\x80\x94whether state or federal\xe2\x80\x94on which the landowner relies. Because petitioner\nbrought his claim pursuant to a state law cause of action, the Court has no occasion to\ndiscuss what remedies might be available for a Nollan/Dolan unconstitutional conditions\nviolation either here or in other cases. * * *\nWe hold that the government\xe2\x80\x99s demand for property from a land use permit applicant must\nsatisfy the requirements of Nollan and Dolan even when the government denies the permit\n* * * . The Court expresses no view on the merits of petitioner\xe2\x80\x99s claim that respondent\xe2\x80\x99s\nactions here failed to comply with the principles set forth in this opinion and those two\ncases. The Florida Supreme Court\xe2\x80\x99s judgment is reversed, and this case is remanded for\nfurther proceedings not inconsistent with this opinion.\nQuestions and Comments\n1.\n\nBurden of Proof: In light of this decision, when the government denies a permit\nbecause the applicant refuses to agree to a condition proposed for the permit, in a\ntakings challenge, the government will have the burden of proving that the rejected\ncondition meets the \xe2\x80\x9cessential nexus\xe2\x80\x9d and \xe2\x80\x9crough proportionality\xe2\x80\x9d tests. As noted\nabove, if the landowner were challenging the permit denial as a taking because of\nthe impact of the denial on the landowner\xe2\x80\x99s use of property, the landowner would\nhave the burden of demonstrating that the denial constituted a taking under the\nPenn Central analysis. Did the Koontz Court determine that the government\ndemonstrated that either of the mitigation proposals it requested met the \xe2\x80\x9cessential\nnexus\xe2\x80\x9d and \xe2\x80\x9crough proportionality\xe2\x80\x9d tests?\n\n2.\n\nCompensation: When a regulation \xe2\x80\x9cgoes too far\xe2\x80\x9d, a property owner is entitled to\njust compensation. If the government denies a permit application because the\napplicant won\xe2\x80\x99t agree to a condition that violates the Nollan or Dolan tests, but the\npermit denial doesn\xe2\x80\x99t \xe2\x80\x9cgo too far\xe2\x80\x9d under the Penn Central analysis, what remedy is\n424\n\n\x0cavailable to the landowner? Has anything been taken?\n3.\n\nWhich Conditions are Examined? The Section 404 permit application process\nfrequently will involve negotiations regarding mitigation requirements or other permit\nconditions. The Corps may propose some conditions which it later decides to take\noff the table. Does Koontz suggest that a court should strike down a permit denial\nwhenever any of the conditions proposed in negotiations violate the Nollan or Dolan\ntests, or do courts only look at the last offer that was on the table before the\ngovernment denied a permit? How might the Koontz decision and the manner in\nwhich courts answer the question above affect the permit negotiation process? If the\ngovernment can deny a permit outright without \xe2\x80\x9cgoing too far\xe2\x80\x9d to limit property usage\nunder Penn Central, should it invite potential litigation by requesting permit\nconditions in the negotiation process that might be challenged under Nollan and\nDolan?\n\n4.\n\nMoney Payments: In a portion of the opinion not reproduced above, the Koontz\nCourt also held that Nollan and Dolan applied when the government asks a\nlandowner, through a permit condition, to spend money instead of providing an\neasement over property. The Court wrote: \xe2\x80\x9cif we accept this argument it would be\nvery easy for land use permitting officials to evade the limitations of Nollan and\nDolan. Because the government need only provide a permit applicant with one\nalternative that satisfies the nexus and rough proportionality standards, a permitting\nauthority wishing to exact an easement could simply give the owner a choice of\neither surrendering an easement or making a payment equal to the easement\xe2\x80\x99s\nvalue. Such so called \xe2\x80\x98in lieu of\xe2\x80\x99 fees are utterly commonplace * * * and they are\nfunctionally equivalent to other types of land use exactions. For that reason and\nthose that follow, we reject respondent\xe2\x80\x99s argument and hold that so-called \xe2\x80\x98monetary\nexactions\xe2\x80\x99 must satisfy the nexus and rough proportionality requirements * * *\xe2\x80\x9d In\nlight of the Court\xe2\x80\x99s holding, it seems fairly clear that conditions included in Section\n404 permits that require mitigation through the use of in lieu fee mitigation programs\nwould be analyzed under the Nollan and Dolan tests.\n\n5.\n\nProfessors J.B. Ruhl and John Echeverria discussed the impact of Koontz on\nenvironmental law in a presentation at Vermont Law School entitled Koontz: A Big\nYawn for Environmental Law? Video of their presentation is available on YouTube.\n\nVI.\n\nOther Takings-Related Requirements\n\nBecause of the financial liability associated with takings, the Corps, EPA and wetland\nregulators routinely consider the likelihood that their actions will be challenged as takings\nwhen deciding whether to issue or deny permits and when deciding what conditions to\ninclude in permits. Even if they did not have a financial incentive to undertake that analysis,\nfederal wetland regulators are required, by a Presidential Executive Order, to consider the\n425\n\n\x0ctakings implications of their actions. Executive Order 12630, issued in 1988, requires\nfederal agencies, among other things, to consider the takings implications of actions before\nundertaking those actions and to document the takings analysis for regulations in the notice\nof proposed rulemaking, and to submit to the Office of Management and Budget, annually,\na list of actions that have been challenged as, or held to be, takings. See Executive Order\n12630, Governmental Actions and Interference with Constitutionally Protected Property\nRights, 53 Fed. Reg. 8859 (Mar. 15, 1988). For permits, the Executive Order requires that\nconditions in the permit \xe2\x80\x9cserve the same purpose that would have been served by a\nprohibition of the use or action; and ... substantially advance that purpose.\xe2\x80\x9d Id. \xc2\xb6 4. In\naddition, the Order provides that \xe2\x80\x9cWhen a proposed action would place a restriction on a\nuse of private property, the restriction imposed on the use shall not be disproportionate to\nthe extent to which the use contributes to the overall problem that the restriction is imposed\nto redress.\xe2\x80\x9d Id.\nIn a 2003 report, the General Accounting Office (GAO) examined the implementation of the\nExecutive Order by the Corps, EPA, the Department of Agriculture and the Department of\nInterior, and concluded that the Order was not being aggressively implemented. See\nGeneral Accounting Office, GAO-03-1015, Regulatory Takings: Implementation of\nExecutive Order on Government Actions Affecting Private Property Use (Sept. 2003). GAO\ncriticized the Department of Justice for failing to update guidelines regarding the\nimplementation of the Executive Order and noted that OMB had informed agencies, in\n1994, that they did not have to submit annual reports outlining the just compensation\nchallenges or awards against the agencies. Id. at 4. Since takings claims against federal\nagencies are litigated by the Department of Justice, GAO was able to obtain data from the\nDepartment regarding the volume of takings claims against the four agencies during the\nthree fiscal years preceding the report. Id. at 5. Between FY 2000 and FY 2002, 44 takings\nlawsuits were filed against the Corps, EPA, the Department of Agriculture or the\nDepartment of Interior. Id. The plaintiffs prevailed in 14 of those cases and received $36.5\nmillion in awards or settlements. Id. GAO determined that the Executive Order did not apply\nto the actions of the agencies in 11 of those 14 cases, and determined that the four\nagencies generally only conducted the takings analysis required by the Executive Order in\n1 out of every 3 cases where the Order did apply. Id. By the end of 2002, plaintiffs filed 54\nmore takings lawsuits against one or more of the four agencies. Id.\nJust as federal agencies are required to evaluate the takings implications of actions before\nthey undertake the actions, many state agencies are required to engage in similar analyses\nbefore undertaking actions. According to a 2013 study prepared by the Environmental Law\nInstitute, at least 17 states have adopted legislation that requires state government officials\nto assess their actions for potential constitutional takings implications or for other impacts\non private property rights. See Environmental Law Institute, State Constraints: StateImposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of\nthe Federal Clean Water Act 24 (May 2013). Most of the states require the government\nofficials to assess their own actions, but 3 states require agency officials to have at least\n426\n\n\x0csome rulemakings reviewed for compliance by the attorney general or a legislative\ncommittee.\n\n427\n\n\x0cInterviewing and Drafting Problem\nDoctor Leslie McCoy, a cardiologist from Charlotte, North Carolina, bought some property on\nOcracoke Island, North Carolina a few years ago to build a vacation home. Apparently, there were\nsome wetlands on the property that she bought. A few years later, she built a house on one of the\nlots that she bought and sold that house. Within the past few months, though, she tried to build a\nhouse on the other lot, but the Corps of Engineers would not grant her a Clean Water Act permit to\nfill the wetlands on the property. She thinks that challenging the validity of the permit denial is futile,\nbut she wants to challenge the permit denial as a taking of her property. She says that the property\nis basically worthless now, and she bought it for $100,000.\nQuestions\n1. Draft a series of questions that you would ask Doctor McCoy in order to evaluate the strength of\nany takings claim that she might have, based on the Corps\xe2\x80\x99 Section 404 permit denial. If you are\nnot familiar with client interviewing techniques, or have not conducted client interviews in the past,\nthe attached short summary of client interviewing may be helpful. The interview should include a\nmix of open-ended and closed-ended questions that will elicit the information that is necessary to\ndetermine whether the client can establish the prima facie case for a taking (i.e., economic impact\nof the decision, interference with reasonable investment-backed expectations, character of the\ngovernment action, rationale for the government\xe2\x80\x99s action, identification of the parcel as a whole,\nfinal definitive agency position, etc.).\n2. Doctor McCoy has arranged to meet with you to explore whether she should pursue a takings\nclaim against the Corps of Engineers. Interview her and gather the information that you will need to\nassess the strength of her takings claim. For purposes of this simulation, it is not necessary to\ndiscuss financial arrangements for the representation. The confidential information for Doctor\nMcCoy is in the teacher\xe2\x80\x99s manual.\n\nChapter Quiz\nNow that you\xe2\x80\x99ve finished Chapter 11, why not try a CALI lesson on the material at: http://cca.li/Q2. It\nshould take about 30 minutes.\n\n428\n\n\x0c'