26 ELR 10283 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Recent Developments in Federal Wetlands Law: Part I

Margaret N. Strand

Editor's Summary: This Article is the first in a series intended to supplement Federal Wetlands Law, a primer that ELR published in 1993 and subsequently incorporated into the Wetlands Deskbook. The Article, which refers to the primer but stands on its own, focuses primarily on where wetlands law has changed since publication of the primer. The Article first provides an update of legislative and executive branch developments in wetlands law and policy. Next, it discusses the jurisdiction of Clean Water Act § 404, including wetlands-delineation issues and the controversy over isolated wetlands and groundwater. Finally, the Article covers regulated and exempted activities under § 404, including agricultural activities. Relevant judicial developments are discussed throughout.

Ms. Strand is a partner in the Washington, D.C., office of Bayh, Connaughton & Malone, where she practices environmental litigation and counseling. She is a member of the National Academy of Sciences' Committee on Wetland Characterization and Board on Environmental Studies and Toxicology. The author gratefully acknowledges the assistance of Barbara J. Bergman of Bayh, Connaughton & Malone in the preparation of this Article.

[26 ELR 10283]

Background

In 1993, ELR published a three-part primer on Federal Wetlands Law,1 which was subsequently incorporated into the Wetlands Deskbook.2 This Article is the first in a series intended to supplement Federal Wetlands Law, focusing primarily on where wetlands law has changed since publication of the primer. The Article follows the structure of, and often refers to, the primer, but can be used on its own.

I. Federal Clean Water Act (CWA)

A. Overview of the CWA Wetlands Program

In 1993, the primer described federal wetlands law as a conglomeration of several statutes, regulations, and agency policies lacking uniformity.Different federal agencies used different definitions of wetlands to administer their separate programs. A policy debate raged over wetland delineation, which was referred to the National Academy of Sciences (NAS) for advice. Notwithstanding several declarations of national wetlands policy, federal wetlands goals were confusing. Legislation was pending in Congress that would significantly change federal wetlands law, striking a new balance between resource protection and property development. As of mid-1996, the overall status of federal wetlands law remains essentially the same.

1. Wetlands Legislation

The years between 1993 and 1996 saw considerable attention paid to wetlands policy in Congress, but no final legislation. After decades of considering changes to the wetlands provisions of the CWA,3 the House of Representatives passed far-reaching amendments in 1995.4 The House bill, H.R. 961, includes a definition of wetlands and establishes the criteria for wetland delineation. Under H.R. 961, considerable acreage now covered by the CWA would be eliminated from federal regulation. Companion legislation, S. 851, was introduced in the Senate, but has not yet been enacted.5 Because of the extent of changes to the CWA, the legislation has prompted a veto threat by President [26 ELR 10284] Clinton.6 As it appeared that environmental issues would play an important role in the 1996 national elections, it became more unlikely that Congress would enact major, controversial changes to federal wetlands law.

Although the fates of H.R. 961 and S. 851 are uncertain, identification of some of the changes to the wetlands program included in the House bill is useful to illustrate views that many in the 104th Congress hold toward the wetlands program. H.R. 961 completely amends CWA § 404.7 The bill assigns to the U.S. Army Corps of Engineers (Corps) complete authority for the permit program, and eliminates the U.S. Environmental Protection Agency's (EPA's) authority to veto Corps-issued permits.8 Several elements of the bill render fundamental changes: (1) a narrow definition of jurisdictional wetlands;9 (2) classification of wetlands by value and blanket protection of high-value wetlands;10 (3) compensation to private-property owners of high-value wetlands;11 and (4) exclusions for many kinds of small-acreage filling actions.12 Numerous other changes are made to the remaining permit program, including establishment of an administrative appeals process and new deadlines for agencyaction.

H.R. 961 defines wetlands and establishes the criteria for their delineation. Under the bill, "wetlands" means:

Lands which have a predominance of hydric soils and which are inundated by surface water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.13

One immediate difference between the current regulatory definition and H.R. 961 is that the bill limits wetlands to areas inundated by surface water; wetlands saturated from groundwater would not be included.

The bill also establishes strict criteria for wetland delineation, requiring "clear evidence of wetlands hydrology, hydrophytic vegetation, and hydric soil" to support a delineation.14 This seems to require independent proof of each of the three categories.15 The bill also provides that facultative vegetation—vegetation that is equally adapted for wetlands or uplands—cannot be treated as wetland vegetation for delineation purposes; under H.R. 961, the wetland must have obligate wetlands vegetation.16 Water must be present at the surface of the wetlands for 21 consecutive days in the growing season. Each criterion is very strict and eliminates from the CWA many areas that are currently delineated as wetlands. In part, this results because it is very difficult to establish proof of 21 consecutive days of inundation or to prove separately each of the factors the statute requires—hydrology, vegetation, and soils. Taken together, the statutory definition and delineation standards would eliminate CWA wetlands jurisdiction over many areas over which it is now exercised.

For those areas within the scope of H.R. 961, the Corps is to classify them as type A, type B, or type C wetlands, depending on their ecological significance.17 Type A wetlands have the highest value, and there are special requirements to be met before permission to alter such wetlands will be granted. Type C wetlands have the lowest value, and may be filled without a permit.18 Compensation is provided to property owners if the fair market value of the property is diminished by 20 percent or more from agency action that limits the use of the property.19 The payment is to be made from the annual appropriation of the agency whose action occasioned the payment.20 The bill also adds a number of exemptions to § 404(f), changes the enforcement standards, encourages development of wetlands mitigation banks, and makes other changes to the program.

In the Senate, S. 851 makes similar revisions to the § 404 program. In early 1996, it was not clear whether wetlands law would be revised before the 104th Congress ended.

Separate from proposed amendments to the CWA, the 104th Congress paid considerable attention to property rights legislation.21 These bills provide for compensation to owners whose property values are diminished by federal regulatory actions, particularly wetlands decisions. On March 3, 1995, the House enacted H.R. 925, "The Private Property Protection Act of [26 ELR 10285] 1995."22 Under this bill, an owner impacted by decisions under CWA § 404 (wetlands), the Endangered Species Act,23 or Swampbuster24 can seek compensation from the agency that imposes a regulatory restriction on property development.25 The bill makes owners eligible for recovery when there is a 20 percent diminution in the fair market value of property from the governmental action. When there is a 50 percent or greater diminution in value, the government can buy the full parcel.26

S. 605, "The Omnibus Property Rights Act of 1995," was voted out of the Senate Judiciary Committee in December 1995.27 It also provides a compensation remedy to property owners impacted by wetlands and endangered species decisions. Under S. 605, a 33 percent diminution in fair market value from the agency action gives rise to a duty to pay.28 Both the Senate and House bills require the agency to pay compensation awards from the funds appropriated for the agency's programs.29 The Senate bill also includes requirements for agencies to prepare takings impact assessments and for the Corps to offer administrative appeals for wetlands decisions.30

Finally, there was considerable legislative activity addressing the wetlands protection programs of the Food Security Act (FSA).31 These are addressed below, in connection with agricultural wetlands programs.32 Certain changes to agricultural wetlands laws were enacted in 1996 as part of amendments to the farm bill.

Wetlands law continues to change and develop in the agencies and the courts, independent of congressional action. There may be a new federal wetlands law in the near future, or the continued divisiveness over wetlands protection may leave CWA § 404 intact for some time to come. Until a new statute is enacted, the primer and this supplement can provide some assistance in navigating the murky waters of federal wetlands law.

2. Executive Branch Policies

In 1993, the Clinton Administration issued a national policy statement on wetlands that sought to impose consistency in program administration across agency lines, as well as to implement other program goals.33 The policy statement promised a balance between protection of the wetland resource and development of private property. It directed the agencies to implement a number of changes to achieve uniformity, fairness, and streamlined permit processing.

Although many of the policies announced in 1993 have not yet been implemented,34 some of the reforms that the Clinton Administration promised have indeed begun. In 1995, the Corps published proposed regulations to establish an administrative appeals process for jurisdictional determinations and permit denials.35 The agencies also issued final guidance on the establishment, use, and operation of wetland mitigation banks.36 A new nationwide general permit was issued for single-family residential housing activities.37 Previously, the agencies had promulgated final changes to the definitions of dredged material that brought draining of wetlands under CWA permit authority.38 The four lead federal agencies39 have entered into memoranda of agreement (MOAs) to coordinate their programs. These administrative changes are similar to some of the provisions of H.R. 961 and S. 851; thus, their promulgation may result in a deferral of legislative changes to § 404.

3. Case Law

The years since 1992 have seen some shifts in the direction of some of the wetlands case law, including standards for the statute of limitations and compensation remedies for regulatory takings.40 Subsequent case law has altered some of the legal standards addressed in the primer, but many standards have simply been reiterated by additional courts. The major decisions are discussed topically below.

B. What Is a Wetland?: Jurisdiction of the § 404 Program

The definition of a wetland involves a wholly legal aspect—is the wetland a body of water covered by the CWA program?—as well as separate evaluation of the physical conditions—does the particular feature exhibit the traits of a wetland as defined in the regulations? Which wetlands are within CWA jurisdiction, particularly isolated or nonadjacent wetlands, is a recurring issue.

1. Wetlands Delineation

As of 1993, the federal agencies had been admonished to use only the 1987 Corps Manual,41 rather than any other [26 ELR 10286] manuals.42 This admonition was the result of the controversy over the 1989 Joint Manual, which was withdrawn after considerable political criticism and accusations that it would greatly expand wetlands jurisdiction.43 In 1991, the Bush Administration had proposed revisions to the wetland delineation manuals,44 which drew comparable political attacks on the grounds that the proposals would greatly reduce wetlands jurisdiction.45 The controversy was quieted when Congress authorized a study of wetland delineation and characterization by the National Research Council (NRC), an arm of the NAS.46 The Corps and EPA have continued to use the 1987 Corps Manual by agreement.47

[] NAS Report. In 1995, the NAS released a report on wetlands characterization and delineation,48 which was prepared by a committee of wetlands experts.49 The NAS Report, which brings together the consensus of science on wetlands delineation, focuses primarily on the physical characteristics necessary to identify a wetland and distinguish it from upland. The report includes numerous conclusions and recommendations for improvement of wetlands delineation systems and methodology. Nevertheless, the NAS gave a stamp of approval to the existing federal wetlands program: "The federal regulatory system for protection of wetlands is scientifically sound and effective in most respects, but it can be more efficient, more uniform, more credible with regulated entities, and more accurate in a technical or scientific sense through constructive reforms of the type suggested in this report."50

The NAS Report is not a delineation manual; rather, it reviews wetland science and past wetland delineation practices. The report critically assesses the tools and criteria for wetland delineation and makes recommendations about these standards and practices.

Significantly, the NAS developed a "reference definition" of a wetland, which encompasses factors similar to, but broader than, the Corps' current regulatory definition. The reference definition is a purely scientific definition, which reflects the NAS' view that wetlands are a distinct ecosystem, rather than simply a regulatory construct.51 According to the NAS Report:

A wetland is an ecosystem that depends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate. The minimum essential characteristics of a wetland are recurrent, sustained inundation or saturation at or near the surface and the presence of physical, chemical, and biological features reflective of recurrent, sustained inundation or saturation. Common diagnostic features of wetlands are hydric soils and hydrophytic vegetation. These features will be present except where specific physicochemical, biota, or anthropogenic factors have removed them or prevented their development.52

The reference definition emphasizes the primary role of hydrology in the wetland ecosystem. Indicia of a wetland are defined broadly as "physical, chemical, or biological features."53

The NAS Report suggests moving away from the so-called three-parameter or three-criteria test for wetland delineation used in the 1987 Corps Manual.54 Rather, the NAS treats water as the paramount factor for maintenance of a wetland, while vegetation (biota) and soils (substrate) are interrelated but dependent on the sustained presence of water.55 Water is an independent factor, while vegetation and soils are dependent factors. Scientifically, the water is a predicate for establishment of the wetlands ecosystem. For delineation and CWA jurisdiction, however, evidence of vegetation or soils can demonstrate wetland hydrology.56 The three criteria are interrelated and, under appropriate circumstances, the presence of one criterion can be presumed because of strong evidence of the other two.57

It makes sense that water determines a wet land. However, hydrologic cycles and other conditions may result in wetlands that do not have water visible above the surface. The primary factor—water—can be more difficult to prove than the dependent factors—vegetation and soils—that reflect persistent water. Vegetation and soils are generally longer lasting than inundation or saturation; i.e., they remain even when water is not present at the surface. Whether sites failing to exhibit surface water are wetlands is a recurring policy issue.

The NAS Report also assesses the functions and values of wetlands, and the ability to use assessment of wetland [26 ELR 10287] functions in wetland delineations. The report concludes that, at this time, there are insufficient tools to evaluate and compare wetland functions in a scientifically sound manner.58 It provides a number of recommendations concerning recording wetlands data in accessible ways and supporting continued research.59

As of early 1996, there had been no direct changes in law or policy based on the NAS Report,60 nor had any delineation manual been modified. The federal agencies found the report to vindicate the existing regulatory program and were continuing to study possible changes as addressed in the report. It is possible that the agencies may propose modifications to the delineation manuals, but it may take a long time before such changes become final. In the meantime, wetland delineations will continue to follow the 1987 Corps Manual, pending changes to the law or the manual.

Delineation Policies and Manuals. In 1994, the federal agencies implemented a change to delineation practices to provide for closer coordination of CWA and agricultural programs. As part of the Clinton wetlands program, the authority to delineate wetlands on agricultural lands was vested in the U.S. Department of Agriculture (USDA), for both CWA and FSA programs.61 The objective was to provide one agency for all wetlands issues of concern to farmers.

The Corps, EPA, the U.S. Fish and Wildlfe Service, and the Soil Conservation Service (now the Natural Resource Conservation Service (NRCS)) of the USDA entered into an MOA on wetlands delineation in 1994.62 Under the MOA, the USDA will provide wetland delineations for farmers, for purposes of both the FSA and the CWA. When conducting CWA delineations, the NRCS delineators will use the 1987 Corps Manual. The USDA uses the National Food Security Act Manual (NFSM) for delineations for FSA programs.63 Because there are differences in the protocols under the two manuals, the MOA establishes procedures for training of NRCS delineations and for review of agricultural wetlands delineations. EPA retains final authority for questions of CWA jurisdiction, including wetland delineations.64 Also, the other three federal agencies will accept final delineations by the USDA for their programs, including the CWA.65

Wetland Delineator Certification. Application of wetlands delineation standards to specific property involves the exercise of professional judgment by delineators. The property owner should be assisted by a qualified wetland delineator. Many delineation disputes can be resolved in the field, between the regulators and trained private environmental professionals. Not surprisingly, those few disputes over delineation that reach the courts are generally "stacked" in the government's favor, so that much of the delineation case law is favorable to the government.

In 1992, the Corps established a demonstration program for certification of wetland delineators66 that should assist property owners and developers in finding good advice on wetland delineation. The program operated on a pilot basis between March 1993 and March 1994 in the states of Washington, Maryland, and Florida. Participants took a written test and, if they passed, a field practicum. Those who passed both parts were awarded provisional certifications, which would be made final when the certification program was fully implemented.67 The idea was that the Corps could accept, without extensive field verification, delineations by certified delineators and that the regulated public could also identify qualified delineators.

The results of the pilot program should cause property owners some concern, however. Approximately 900 applicants took the written exam, but fewer than 400 passed.68 Of the 390 who then took the field practicum, approximately 90 percent passed. If the 900 applicants for certification are any indication, there are many unqualified persons offering services as wetland delineators. General environmental consultants often do not have the specialized training in wetlands studies to conduct proper wetland delineations.69 If the delineation is crucial, the property owner should carefully seek out a qualified wetland specialist.

In March 1995, the Corps proposed to establish the wetland delineator certification program on a permanent basis.70 The notice of proposed rulemaking points out that delineations by certified wetlands delineators can help both the property owner and the Corps. Each will be able to rely on such delineations, with the anticipated result that the Corps will expedite acceptance of these delineations.

Delineation Issues in Court. The cases continue to hold that water does not have to be present at the time a delineation is madefor CWA jurisdiction to attach. The saga of Ocie and Carey Mills, father and son convicted of criminal violations of the CWA in 1989, graphically illustrates the interface of wetlands law and wetlands science. The Millses were prosecuted for flagrantly violating the CWA by continuing to fill property identified by the Corps as wetlands after receiving several cease-and-desist orders. They were sentenced to 21 months' imprisonment and 1 year supervised release, ordered to pay fines of $ 5,000 and $ 250, and ordered to restore the property. Disputes remained with the federal government over [26 ELR 10288] the adequacy of the restoration, which the United States brought to court in a second action.71

During the second round, the Millses raised a number of new and old defenses, but as the district court reviewed the dispute over the restoration plan, it expressed frustration with the wetlands program in the following manner:

In a reversal of terms that is worthy of Alice in Wonderland, the regulatory hydra which emerged from the [CWA] mandates in this case that a landowner who places clean fill dirt on a plot of subdivided dry land may be imprisoned for the statutory felony offense of "discharging pollutants into the navigable waters of the United States."72

Defendants argued that the parcel was not a physical wetland at the time of the filling, because it had been filled, at least in part, by the prior owner and before implementation of certain CWA regulations. They also asserted that Congress could not delegate the authority to define CWA jurisdiction to the Corps. Finally, the Millses maintained that the wetlands definitions were impermissibly vague.

The court carefully reviewed and rejected arguments that the regulatory definition of "wetlands" under which the Millses were convicted constituted an unlawful delegation of legislative authority. Assessing the general principle of lenity, the court acknowledged that criminal laws are strictly construed to assure that "there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability."73 Nonetheless, the court reluctantly concluded that the CWA could be enforced even though a parcel appeared to be dry when the fill was deposited. The court was not happy with the result, however:

I am unable to say that a person of common intelligence would be able to ascertain that this statutory prohibition applies to clean fill dirt placed onto a waterfront lot such as the one at issue here. Yet the Corps' regulatory power to flesh out the statute to cover wetlands has been specifically approved by the Supreme Court, and it leaves little leeway.

….

A jurisprudence which allows Congress to impliedly delegate its criminal lawmaking authority to a regulatory agency such as the Army Corps—so long as Congress provides an "intelligible principle" to guide that agency—is enough to make any judge pause and question what has happened…. Yet that seems to be the state of the law.74

Other recent decisions have also addressed wetland delineations. In Slagle v. United States ex rel. Baldwin,75 a developer challenged the denial of an after-the-fact permit application on the grounds that the property in question was not "waters of the United States." The court rejected the developer's position that only traditionally navigable waters could be jurisdictional under the CWA.76

It is very difficult to persuade a court to overturn the government's scientific evaluation of a wetland's boundaries. For example, in New Hanover Township v. U.S. Army Corps of Engineers,77 the Corps delineated wetlands on previously farmed land, where there were few indicators of wetland vegetation. Delineations on such disturbed properties must rely on factors that are slower to change, such as soils or hydrology. The 1987 Corps Manual provides guidance for evaluating wetland jurisdiction in disturbed areas.78 In this instance, under the "arbitrary and capricious" standard of review, the court upheld the Corps' decision to place more weight on the soils than on the hydrology. As the court stated, "just because the Corps draws a different conclusion about the usefulness of a given criterion does not mean that it did not consider that criterion in conformity with the Federal Manual."79

The application of wetlands manuals while they were under reconsideration by the federal agencies was raised as a defense in a CWA criminal case. United States v. Ellen80 involved the prosecution of the engineer hired to assist a landowner with a wetlands project to develop a hunting preserve. The project included excavation, road construction, and other earth moving within wetlands areas to create ponds and construct access areas.81

Defendant William B. Ellen, the engineer, was convicted of five counts of CWA violations. On appeal, Ellen claimed, among other points, that a wetlands determination applying the 1989 Joint Manual to activities that allegedly occurred in 1988 or earlier was unconstitutional. Ellen relied on the Due Process82 and Ex Post Facto83 Clauses of the U.S. Constitution, each of which assures that citizens have notice of the laws with which they must comply.84 The court rejected these claims, relying in part on the principle that the 1989 Joint Manual was not a law, but rather an interpretation of existing regulations.85 The regulatory definition of wetlands that Ellen was charged with violating had not been changed. Wetlands delineation manuals, the court held, were only interpretations of law to which the Ex Post Facto Clause did not apply.86 Similarly, the court rejected Ellen's [26 ELR 10289] claim that the changes in delineation methodology resulted in insufficient notice under the Due Process Clause. On this point, the court found ample evidence in the record that Ellen knew that he was working in wetlands, regardless of the standards of the different delineation manuals.87

2. "Waters of the United States" Construed

Isolated Wetlands. Whether nonadjacent or isolated wetlands are within CWA jurisdiction continues to be litigated.88 Philosophically, the debate concerns whether wetlands not adjoining surface waters contribute to the CWA's goals, which seem focused on the quality of the nation's lakes, rivers, and streams. The CWA's regulations clearly provide that nonadjacent wetlands are within CWA jurisdiction under the definition of "waters of the United States." In addition to interstate surface waters and adjacent wetlands, "waters of the United States" includes "all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce …."89 Isolated waters are referred to as "Commerce Clause" waters because they are defined based on their effect on interstate commerce.90 The issue that recurs in establishing jurisdiction over such isolated waters is what evidence establishes the required nexus between the waterbody and interstate commerce.

Where the isolated waters are wetlands, the problem can be exacerbated because the wetlands may be seasonally dry or reduced in area. During wet periods, many isolated wetlands provide cover, nesting, and breeding habitat for migratory birds. Using this wildlife connection as the basis for CWA jurisdiction provides the grist for a mill of bitter controversy.91 Dubbed the government's "reasonable bird" standard, cases involving CWA jurisdiction over isolated wetlands based on wildlife use generate heated results.

In litigation, the regulatory definition has been attacked in many ways. Opponents have asserted that the definition constitutes an unconstitutional delegation of legislative authority or that it exceeds the constitutional power given to Congress over interstate commerce. In addition, questions arise over the facts necessary to show a sufficient nexus between a particular wetland parcel and interstate commerce to support regulatory jurisdiction. For the most part, the government is winning the cases, with courts accepting that wetlands lacking direct connection to other surface waters can still be regulated.

In October 1995, the U.S. Supreme Court declined to review the isolated-waters issue raised in the latest round of Leslie Salt litigation.92 After years of litigation over filling on Leslie Salt's property, with a trip to the Court of Appeals in 1990,93 the Ninth Circuit let stand its earlier determination that certain artificially created ponds that were dry most of the year could be jurisdictional.94 In fact, the court explored the merits of the issue in great depth, given that the holding relied on the principle of "law of the case."95

The opinion contains a thorough discussion of all the substantive points raised in challenge to basing jurisdiction on a commerce nexus.96 The dispute had been previously appealed and remanded for a full trial on jurisdiction. Thus, in 1995, the Ninth Circuit had before it a full record showing extensive, actual use of the wetland by migratory birds. Appellant Leslie Salt's former salt-crystallizer ponds were seasonally wet during rainy periods and extremely dry the remainder of the year. The water remained long enough to qualify as a wetland under the 1987 Corps Manual. In fact, the wetland provided seasonal habitat for ample wildlife. The court, therefore, upheld CWA jurisdiction.

When the company sought Supreme Court review, the Court's denial of certiorari prompted a lengthy, scathing dissent from Justice Clarence Thomas, who questioned the constitutional authority to regulate nonadjacent waters based on use by migratory birds.97 Justice Thomas' dissent relied on United States v. Lopez,98 in which the Court had addressed Commerce Clause jurisprudence in the context of a challenge to a federal law that imposed a prohibition against guns in schools. The Court held that activities within schools were traditionally the province of state and local governments, not the federal government. The Court thus struck down the gun-control provision for lack of a sufficient nexus to interstate commerce.99

Justice Thomas felt that the basis that the Corps asserted for CWA jurisdiction over Leslie Salt's property was "even more far fetched" than the authority offered, and rejected, [26 ELR 10290] in Lopez. While agreeing that commercial activity involving wildlife could form the basis for federal constitutional jurisdiction, Thomas' dissent insisted that the Court should distinguish between "items of interstate commerce … [and] simply airborne interstate travelers."100 The core issue for CWA isolated-waters jurisdiction was framed, but must wait for another day to be addressed:

I do not challenge Congress' power to preserve migratory birds and their habitat through legitimate means. However, that substantial interstate commerce depends on the continued existence of migratory birds does not give the Corps carte blanche authority to regulate every property that migratory birds use or could use as habitat.101

It remains to be seen if federal courts will accept Justice Thomas' invitation to reassess federal jurisdiction over isolated waters in light of the Lopez analysis of the federal commerce power.

The Hoffman Homes series of decisions, cited with approval by the Ninth Circuit in Leslie Salt, remains the most focused study of bird usage of isolated wetlands as a basis for CWA jurisdiction.102 Hoffman Homes, Inc. v. Administrator,103 involved two small parcels of isolated waters. The developer whom EPA charged with illegal filling appealed the imposition of a $ 50,000 administrative penalty for filling a one-acre depression that retained water during wet seasons. The key issue in this case was the criteria for interstate commerce nexus when an isolated wetland was allegedly used by migratory birds.

Thecourt initially decided that the mere potential for use of a wetland by migratory birds was insufficient to establish jurisdiction under the CWA.104 When the United States petitioned for rehearing en banc, the court referred the matter for supervised settlement discussions.105 The parties were unable to settle, however, and the matter returned to the court for rehearing en banc.

EPA maintained that the regulations protected isolated wetlands that did or could affect interstate commerce, so that the actual use of a wetland by migratory birds need not be proven. While the court upheld EPA's interpretation that the potential for adverse impact on commerce was sufficient to support jurisdiction, it also held that there must be "substantial evidence" of the nexus.106 As an evidentiary matter, rather than a legal interpretation, clear evidence must prove the potential for use by migratory birds. On this basis, the court concluded that EPA had failed to demonstrate sufficient linkage between interstate commerce and the isolated wetland at issue.107 Thus, the EPA order and $ 50,000 fine were vacated.

In short, the government prevailed on two key legal issues—that use by migratory birds was a sufficient nexus to interstate commerce to support CWA jurisdiction and that the potential for such use was also sufficient. But the government lost the case on the facts. Even when CWA jurisdiction over an isolated wetland is based on the potential that migratory birds may use the wetland, the government must provide substantial evidence to support that potential use.

The isolated-waters issue remains alive in other contexts. When EPA premised CWA jurisdiction on discharges to a sinkhole because dead migratory birds were found nearby, the landowner sought to challenge the government's authority. The Tenth Circuit upheld a dismissal of the challenge on preenforcement review grounds, leaving the issue of "bird jurisdiction" for another day.108

In United States v. Suarez,109 a frustrated convicted wetlands violator argued that he was denied effective counsel when his defense attorney allegedly failed to question CWA jurisdiction over isolated waters. The defendant maintained that the government would have failed to prove that the wetlands he filled were adjacent to waters of the United States but for his "ineffective" counsel who allegedly opened the door to this issue in cross-examination of the government's witnesses. Suarez contended that absent his attorney's error, the government would have lacked both CWA jurisdiction over the isolated wetland and proof of adjacency. The district court found that even if CWA jurisdiction over isolated waters was uncertain, knowledge of this subtlety of wetlands law was not required for effective defense counsel.110 The decision was made easier for the court because it did not have to face the isolated-waters issue directly. The court was satisfied, based on a site view, that the wetlands were in fact adjacent to a river. Thus, even if defendant's counsel erred, the error did not cause defendant's conviction.111

Groundwater. The jurisdictional role of groundwater is frequently raised in CWA cases, involving both wetlands and other surface waters. One question is whether groundwater is within CWA jurisdiction. With respect to wetlands, the question arises when a discharge to the surface or into groundwater allegedly results in a discharge into other waters via groundwater transport. This issue has arisen in several cases.

In Sierra Club v. Colorado Refining Co.,112 the court stated:

A review of the case law addressing the regulation of groundwater under the [CWA] reveals that "isolated/nontributary groundwater," such as confined wells, has been unequivocally excluded from the Act by some [26 ELR 10291] courts. However, these cases and others do not preclude the Act from applying to the regulation of "tributary groundwater," such as in the present case, which migrates from groundwater back into surface waters.113

Finding conflicting case law, the district court relied on the broad interpretation of CWA jurisdiction the Tenth Circuit afforded in cases such as Quivira Mining Co. v. U.S. Environmental Protection Agency114 and United States v. Earth Sciences, Inc.115 The court concluded that the CWA's "preclusion of the discharge of any pollutant into 'navigable waters' includes such discharge which reaches 'navigable waters' through groundwater."116

A different conclusion was reached in Town of Norfolk v. U.S. Army Corps of Engineers.117 A landfill required as part of the Boston Harbor cleanup project was sited at a location within a 600-square-foot wetland. Opponents challenged the Corps' issuance of a § 404 permit for the project. Although the wetland itself was small and apparently degraded, project opponents argued that fill in the wetland would result in degradation of groundwater.118 The First Circuit affirmed the district court's assessment that the CWA's regulations did not encompass groundwater as an aquatic ecosystem that the Corps needed to consider in issuing the permit.119 The opinion only directly addressed EPA's § 404(b)(1) guidelines. The court delicately avoided the fundamental issue of whether groundwater is "water of the United States" by deferring to the Corps:

Although other courts have questioned whether the term "waters of the United States" should include groundwaters connected to surface waters,…we agree with the Corps that since such a determination ultimately involves an ecological judgment about the relationship between surface and groundwaters, it should be left in the first instance to the discretion of the EPA and the Corps.120

In United States v. Banks,121 a property owner who filled wetlands on Big Pine Key, Florida, maintained that the area was isolated and not adjacent to waters of the United States. A street blocked the flow of surface water between the wetlands and nearby surface water channels. The court found the wetlands to be adjacent by virtue of both hydrological connection through groundwater and ecological links of a unified habitat.122 The court was satisfied that the wetland and the surface waters functioned together, providing wildlife habitat and water-quality filtering. Based on the combined functions, and the groundwater connection between the wetland and the surface water, the court concluded that the wetland was adjacent to the surface water.123

"Normal Circumstances." Jurisdictional wetlands are limited to parcels where the wetland condition is the "normal circumstance."124 This limitation is designed to assure both that areas that are only temporarily wetlands are not regulated and that attempts to convert wetlands to uplands do not deprive the government of its enforcement authority.

Recent litigation has also assessed the "normal circumstances" part of the wetlands definition. The Corps has long considered areas that are artificially irrigated and that would return to upland without the irrigation not to be jurisdictional wetlands.125 The Corps may determine, on a case-by-case basis, that such areas are jurisdictional depending on the facts. In Friends of the Payette v. Horseshoe Bend Hydroelectric Co.,126 the Ninth Circuit upheld the Corps' determination that wetlands in and along a diversion canal were not jurisdictional even though the record contained evidence of various sources of water, including springs, to the canals. The case illustrates the difficulty of distinguishing between those situations in which a wetland is a permanent feature, although created by artificial means, and those in which the wetland is only temporarily established. In the latter instance, the Corps may conclude that the wetland is not the "normal circumstance" for the location and, thus, is not within CWA jurisdiction.

C. Regulated Activities Under § 404

A persistent point of confusion in federal wetlands law concerns what activities in wetlands are unlawful. The CWA prohibits discharges from a point source without, or not in compliance with, a permit.127 For wetlands, filling with dirt or other material must be authorized by a § 404 permit issued by the Corps.128 To violate the CWA, therefore, there must be at least a discharge of some kind. This leaves confusion over whether the CWA conveys authority to regulate other activities that destroy wetlands, such as draining or diversion of water supply.129

1. Draining Wetlands

The Corps had long held that it lacked authority to regulate any wetland-destroying activity other than filling. The government settled a lawsuit over this issue by agreeing to propose regulations controlling the draining of wetlands.130 The draining regulations were finalized in August 1993.131 The regulations attempt to control wetland-impacting activities that do not rely on filling. The changed rule expands [26 ELR 10292] the definition of "discharge of dredged material." Some background helps to explain the change.

In the past, the Corps declined to regulate de minimis discharges, such as the fallback soils that accompany the dredging of drainage channels in a wetland. Before 1993, the Corps' regulations exempted dredging from the requirement for a permit, regardless of the impact such dredging might have on wetlands. The old definitions provided that:

(d) The term "discharge of dredged material" means any addition of dredged material into the waters of the United States…. The term does not include de minimis, incidental soil movement occurring during normal dredging operations.

(e) The term "fill material" means any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of an waterbody….132

Together, these sections supported the Corps' prior position that dredging, even when it drained a wetland, did not require a permit. The same sections also provided the support for the Corps' complicated policies toward landclearing or removal of vegetation, which can also fully destroy a wetland by altering the habitat balance or by changing the vegetation's water demands.

Under the new regulations, when draining involves some discharge—even if de minimis—and the result is a significant change to the waterbody, the Corps will regulate the de minimis discharge. The new regulations provide that no § 404 permit is required as long as the discharge is "associated with any activity that does not have or would not have the effect of destroying or degrading an area of waters of the United States …."133 The regulations provide this further definition: "An activity associated with a discharge of dredged material destroys an area of waters of the United States if it alters the area in such a way that it would no longer be a water of the United States."134 In this manner, a discharge that has the effect of destroying a wetland will require a § 404 permit. The new rule looks at the effect of the discharge, rather than the quantity of the discharge.

These regulatory changes were quickly challenged in federal court.135 The issue of the Corps' authority to regulate drainage of wetlands in this fashion was briefed and argued in 1995, but the judge who heard the case passed away before deciding it. The case remained pending in the federal district court in early 1996. Given the significance of the issues, whatever the result in the district court, the case is likely to be appealed.

Before the Corps' regulatory changes, the courts continued to require that the government show a discharge of fill from a point source to establish a CWA violation. In United States v. Ramagosa,136 a jury acquitted the defendant of charges that excavating bogs to create lakes at a residential development violated the CWA. While the jury did not state its reasons, the defense emphasized that excavation of land is not the same as deposit of fill.137

In a similar fashion, the diversion of a stream without filling did not require a CWA permit. In Bettis v. Town of Ontario,138 the court found that alleged stream diversion that resulted in downstream damage was not a CWA violation, because there was no discharge of fill material. The water itself, which did the damage, is not a regulated pollutant under the CWA. The same conclusion is found in Abenaki Nation of Mississquoi v. Hughes,139 where impacts on wetlands created by flooding did not require a permit, because no discharge of a pollutant occurred. On the other hand, construction of feeder ditches and basins in connection with discharges of fill did constitute a CWA violation in Leslie Salt.140 It is hard to reconcile some of the cases addressing activities regulated by the CWA.

Salt Pond Associates v. U.S. Army Corps of Engineers141 involved review of the Corps' decision to require a permit for excavation of ponds in wetlands. Relying on the express language of the CWA, which prohibits the discharge of pollutants, the court agreed that excavation or dredging does not require a permit.142 The government relied on Regulatory Guidance Letter (RGL) 90-5,143 which addresses landclearing activities and indicates that redeposition of soil in the course of excavation is a discharge that may require a permit. The court determined that even if this was a permissible construction of the CWA, it could not be imposed as law without being promulgated as a legislative regulation.144 RGLs were interpretative rules only, and did not have the full force of law. Rejecting efforts to find support for the government's position in the existing regulations, the court took notice of the pending activities within the Corps and Congress to address excavation in wetlands: "The fact that the legislative and executive branches, as well as countless administrative agencies, are presently debating the issue of whether pond excavation and landclearing activities are to be considered regulated discharges under the CWA repudiates the government's expansive view of this special condition provision."145 Approximately six months after this decision, the Corps published proposed regulations to cover excavation and dredging that have significant impacts on wetlands.146

When the Corps determined to regulate minimal discharges that had maximum impact on waters of the United States, it opened the way to numerous possible disputes. One such problem concerns use of off-road vehicles, which can be operated in wetlands and can leave ruts sufficient to drain areas. This issue was raised by a Florida group concerned with the impact of off-road vehicles on the Big Cypress Swamp, which the National Park Service (NPS) [26 ELR 10293] administers.147 The group wanted the NPS to limit use of recreational vehicles because of the damage to the wetlands. The Corps issued guidance in August 1995 addressing off-road vehicle use in wetlands.148 The guidance provides that, as a general rule, if off-road vehicles are used as intended, the usage will not require a permit.

2. Landclearing Activities149

Whether landclearing involves regulated discharge of fill has been a long-standing battle between environmentalists and timber harvesters in forested wetlands. One skirmish involved North Carolina's East Dismal Swamp, where Weyerhaeuser Company was removing vegetation, opening drainage ditches, depositing fill, and planting pine trees, replacing native wetland habitat. Represented by the Southern Environmental Law Center, which has sought to preserve the native ecosystems of the forested wetlands in the mid-Atlantic region, environmental groups sued the government and Weyerhaeuser, alleging that the company's activities required a CWA permit. Environmental Defense Fund v. Tidwell150 addresses the application of the § 404(f)(1)(A) silviculture exemption151 to these activities.

EPA agreed that the landclearing and planting activities did constitute a discharge to jurisdictional wetlands that ordinarily would require a § 404 permit; however, normal, ongoing silviculture activities are exempt from the permit requirement. The issue was whether under § 404(f)(2)152 the exemption was vitiated.153 The § 404(f)(2) "recapture" clause makes silviculture (or other exempt activities) subject to the permit requirement if "their purpose is to subject the land to a 'use to which it was not previously subject.'"154

Ruling on a motion to dismiss, where the facts are taken as pled, the court held that the allegations of conversion from wetland forest to pine forest constituted putting the wetland to a new use, rather than ongoing silviculture.155 This meant that the activities required a § 404 permit. Weyerhaeuser made an interesting, albeit unsuccessful, argument that would have made it impossible for the § 404(f)(2) recapture provision to be enforced by a citizen suit. The company maintained that if no permit was required for the silviculture activities, there was no "effluent limitation" that could be enforced in a citizen suit.156 The court rejected this contention.157

Mechanical landclearing is an activity associated with planting cultivated timber. Conversion of naturally wooded wetlands to pine forest, a commercial timber crop, has generated recurring questions, as illustrated by Tidwell, above. The dispute centers around whether prior Corps standards governing landclearing exempted this conversion of forestland.158 Thus, under earlier regulatory standards, simply removing trees from a forested wetland might not constitute a discharge subject to § 404 permit requirements, because it was not "filling." When the government promulgated its regulation covering wetland draining, it revoked prior RGLs addressing landclearing.159 To address forested wetlands specifically, as well as the planting of pine forests in wetlands, the Corps and EPA issued joint guidance on silviculture.160 The guidance provides that "certain wetlands should not be subject to unpermitted mechanical silviculture site preparation," because the results would destroy the wetland, contrary to the newly promulgated regulation.161 The guidance also describes situations in which permits will and will not be required for silviculture site work. In short, it is the outcome of mechanical silviculture site-preparation work, rather than the quantity of the discharge, that establishes the test for whether a § 404 permit is required.

D. Exemptions From § 404

The CWA statutory exemptions from the requirement to obtain a § 404 permit are found in § 404(f).162 Many of the exemptions address agricultural activities. It is important to remember, however, that the FSA, which is administered by the USDA, also addresses impact to wetlands on agricultural lands. The existence of a separate statute, involving different programs, agencies, and goals from the CWA creates the potential for confusion over activities in wetlands located on agricultural land. The government sought to avoid such confusion through implementing consistent policies for the administration of both programs.

1. Agricultural Activities

[] Regulatory Changes. In 1990, the Corps issued a memorandum for the field to clarify the relationship between CWA jurisdiction and agricultural activities.163 One provision of this policy was later codified into the Corps' regulations, excluding [26 ELR 10294] from the CWA prior converted cropland as defined in the FSA.164 To understand this rule, it is important to understand the FSA program.

Under the FSA, wetlands that were converted to agricultural production prior to December 23, 1985, are defined as "prior converted cropland."165 A farmer can obtain from the USDA a determination that specific property qualifies as prior converted cropland.166 Planting crops on qualified prior converted cropland does not violate the FSA's Swampbuster provisions, meaning that a farmer can obtain agricultural benefits for that acreage. RGL 90-7167 set forth the Corps' policy to exclude from CWA regulation areas that were designated as prior converted cropland under the FSA. The Corps reasoned that such land is no longer a wetland under "normal circumstances."168

The Corps made this policy a formal regulatory change in 1993.169 Since then, the regulation at 33 C.F.R. § 328.3 has had an additional definition: "Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the [CWA], the final authority regarding [CWA] jurisdiction remains with EPA."170

[] Normal Farming Activities. The CWA contains provisions that exempt activities associated with normal farming or silviculture from the need to obtain a § 404 permit.171 In 1995, the Corps and EPA issued guidance addressing the permit requirement as applied to mechanical silvicultural site-preparation activities for establishment of pine plantations in the southeast.172 The new regulation addressing the draining of wetlands173 may also impact normal farming and silviculture practices.

The scope of the farming exemptions under § 404 and the relationship between the CWA and FSA programs were presented in United States v. Brace.174 Defendant Brace had conducted clearing, mulching, leveling, and draining activities on his farmland throughout the early 1980s. Under the FSA, wetland draining that began before December 23, 1985, was authorized on a "prior commenced" or "prior converted" determination made by the Agricultural Stabilization and Conservation Service (ASCS). Although Brace obtained this authorization,175 his activities were still unlawful under the CWA unless they qualified for an exemption. The government became aware of Brace's activities in 1987 and issued him three orders to cease work.176

The Third Circuit had to apply the § 404(f)(1)(A) exemption for normal farming activities that was explained in the Corps' regulations. Normal farming activities that are exempt must be "part of an established (i.e., on-going) farming … operation,"177 as compared to dredging or filling to create new farm acreage. Moreover, this exemption is subject to the "recapture" provision of § 404(f)(2), so that activities that result in major changes to the extent of wetlands are not exempt.178 As the court summarized:

Thus, to be exempt from the CWA permit requirement, a defendant has the burden of demonstrating that proposed activities both satisfy the requirements of Section 404(f)(1) and avoid the recapture provision of Section 404(f)(2)…. Read together, the two parts of Section 404(f) provide a narrow exemption for agricultural activities that have little or no adverse effect on the waters of the United States.179

Reviewing all the facts, the Third Circuit reversed the district court and held that Brace had brought new land into farming by virtue of the discharges, and that such actions were not exempt from the § 404 permit requirement.180

The court addressed the apparent difference between the ASCS' "prior commenced" determination and the CWA's prohibition in a legalistic manner. The ASCS' determination expressly provided that it did not exempt the activities from any other requirements of law.181 Moreover, the court felt that the ASCS' determination was also based on the fact that Brace was commencing a new activity, rather than simply continuing ongoing farming, thus supporting the conclusion that the actions were not exempt under the CWA.182

2. Maintenance of Drainage Ditches183

In 1993, the United States had pending an enforcement action that involved a drainage ditch on agricultural land in Sargent County, North Dakota.184 In the late 1980s, the Sargent County Water Resources District had commenced work to clear and reopen a 25-mile drainage ditch that was initially constructed in 1917. EPA and the U.S. Department of Justice brought an enforcement action, maintaining that [26 ELR 10295] the activity required a § 404 permit. In a 1992 order, the district court decided that the isolated wetlands through which the drainage ditch ran were within CWA jurisdiction.185 Section 404(f)(1)(C), however, exempts from the permit requirement discharges for the purpose of "construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches."186 The court determined that a trial was needed to decide whether the activities the county conducted constituted exempt maintenance of the drainage ditch.187

A bench trial was held in November 1994. The court's decision of December 30, 1994, concludes that the activities were exempt as maintenance of a preexisting drain.188 The court found that the work was designed to replicate the original drain to a reasonable degree, given that there was a murky record of the original plans and the original construction of the drain.189 In addition, the court was impressed that local financing, which was available only for new projects, was denied because this construction was viewed as drain maintenance.190 The court gave short shrift to the government's view regarding the passage of time and its argument that the drain should have been considered "abandoned" under the law. The court felt that actions before implementation of CWA regulations in the mid-1970s could not be relevant to CWA legal determinations.191

The decision also addressed the "recapture" provision of § 404(f)(2) in relation to drain maintenance. Having adopted an "as built" standard for evaluating maintenance, which looked to the status in the 1920s, the court concluded that the "recapture" had to be evaluated in terms of the same time frame.192 That is, the exemption would fail only if the drain maintenance significantly changed the waters of the United States from their condition when the drain was first constructed. It was logical that the drain maintenance would change the reach of waters somewhat at the time of the maintenance, because the purpose of the maintenance was to restore the drain to its original function. The premaintenance conditions, therefore, could not be the benchmark for the recapture analysis. Having thus framed the question, the court found that the exemption was valid under § 404(f)(2).193

3. Maintenance of Serviceable Structures

Section 404(f)(1)(B)'s exemption for maintenance of "currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches"194 was addressed in the review of a criminal conviction. In United States v. Schallom,195 a contract supervisor hired by a highway department was convicted of illegally discharging "shotcrete" into a river and wetlands in the course of repairing a bridge abutment with a concrete material applied by hose under pressure. According to the trial evidence, this is a messy process in which shotcrete may be sprayed onto trees, on the river banks, and elsewhere. Schallom discharged tons of shotcrete into the water during a "test."196

The court easily rejected the defendant's contention that the shotcrete was not a pollutant regulated by the CWA.197 The treatment of § 404(f) was trickier, however. The defendant complained that the activities were exempt under § 404(f)(1)(B) as bridge maintenance. On appeal, defendant sought a reversal on the ground that there was no jury instruction concerning the exemption. He maintained that because he thought the activity was exempt, he could not have "knowingly" violated the CWA.198 The court narrowly construed the exemption as applying only to filling to change the elevation of the water bottom in connection with maintenance of currently serviceable structures. Because the shotcrete was not used as fill material, the court decided that there was no need for a jury instruction regarding the exemption.199

Although an appellate opinion may not disclose all facts in the record, the Fourth Circuit probably construed the exemption for repair of serviceable structures incorrectly. The shotcrete discharged into the water was fill material, regardless of the intent of the discharger. A conviction for violating § 404 requires the discharge of fill material. The court's opinion states that "underwater inspection of Mill Creek around the … bridge revealed large amounts of 'punky' material in the creek bed thought to be shotcrete …."200 Moreover, the bridge-abutment maintenance exemption should encompass at least some minimal discharges associated with maintaining portions of bridges above the water surface. Based on the opinion, Schallom might have been convicted on the basis of his direct discharges (such as the "test" shotcrete) or his excessively sloppy practices, which could have gone beyond the reasonable scope of bridge maintenance. That is, Schallom might still have been found guilty even if the court evaluated application of the exemption more fully.

Conclusion

This Article has addressed the threshold issues of wetlands law. To determine whether a parcel is regulated as a wetland, the owner must evaluate whether there is CWA jurisdiction, whether the planned activity is regulated, and whether the law exempts the activity. As discussed, these basics have seen some changes in recent years.

Once the existence of a wetland is established, CWA permit requirements then come into play. Individual permit standards and the general and nationwide permit program will be covered in the next installment of this supplement, along with enforcement issues. Keep your boots handy for the continuing trek through federal wetlands law.

1. Margaret N. Strand, Federal Wetlands Law: Part I, 23 ELR 10185 (Apr. 1993); id. Part II, 23 ELR 10284 (May 1993); id. Part III, 23 ELR 10354 (June 1993).

2. Margaret N. Strand, Federal Wetlands Law, in WETLANDS DESKBOOK 3-101 (Environmental Law Institute 1993) [hereinafter WETLANDS DESKBOOK]. Federal Wetlands Law, as it appears in the deskbook, is referred to throughout the text of this Article as "the primer."

3. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607. See, e.g., James E. Satterfield, High Hopes and Failed Expectations: The Environmental Record of the 103d Congress, 25 ELR 10089 (Feb. 1995).

4. H.R. 961, 104th Cong., 1st Sess. (May 18, 1995) [hereinafter H.R. 961].

5. The Wetlands Regulatory Reform Act of 1995, S. 851, 104th Cong., 1st Sess. (1995) (introduced by Sen. Bennett Johnston (D-La.)).

6. President Clinton, Remarks on Clean Water Legislation, 31 WEEKLY COMP. PRES. DOC. 921 (May 30, 1995), available in LEXIS, Public Papers of the Presidents. H.R. 961 has titles addressed to aspects of water pollution in addition to wetlands, including stormwater and watershed management. The Clinton Administration opposes many parts of the legislation, not just the wetlands provisions.

7. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

8. H.R. 961, supra note 4, § 803, at 263-64, amending 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a).

9. Id. § 804, at 343, amending 33 U.S.C. § 1362(28), ELR STAT. FWPCA § 502(28).

10. Id. § 803, at 264-68, amending 33 U.S.C. § 1344(c), ELR STAT. FWPCA § 404(c).

11. Id. § 803, at 270-75, amending 33 U.S.C. § 1344(d), ELR STAT. FWPCA § 404(d).

12. Id. § 803, at 292-93, 297-305, 308, amending 33 U.S.C. § 1344(e)(6), (f), and (g), ELR STAT. FWPCA § 404(e)(6), (f), and (g).

13. Id. § 804, at 343, amending 33 U.S.C. § 1362(28), ELR STAT. FWPCA § 502(28).

14. Id. § 803, at 305-09.

15. The requirement that each of the three parameters or factors for wetlands be independently demonstrated was included in the 1991 Proposed Revisions to the Wetlands Delineation Manual. See 56 Fed. Reg. 40446 (Aug. 14, 1991). This requirement was heavily criticized on the grounds that it is often difficult to develop independent proof of hydrology for the required duration. See, e.g., ENVIRONMENTAL DEFENSE FUND AND WORLD WILDLIFE FUND, HOW WET IS A WETLAND? THE IMPACTS OF THE PROPOSED REVISIONS TO THE FEDERAL WETLANDS DELINEATION MANUAL (1992) [hereinafter HOW WET IS A WETLAND?]

16. Wetland vegetation is classified according to the likelihood that it will be found in wetlands. See U.S. Fish and Wildlife Service, National List of Plant Species That Occur in Wetlands, which may be obtained by writing to the U.S. Fish and Wildlife Service (FWS), National Wetland Inventory, Monroe Bldg., 9720 Executive Ctr. Dr., Ste. 101, St. Petersburg FL 33702. Obligate vegetation (OBL) has a 99 percent probability of occurring in wetlands and a 1 percent probability of occurring elsewhere. Facultative vegetation (FAC) has a similar likelihood of occurring in wetlands or nonwetlands. Facultative wetland plants (FACW) will occur in wetlands 67-99 percent of the time, but may appear in nonwetlands up to 33 percent of the time. Facultative upland plants (FACU) sometimes occur in wetlands (less than 33 percent probability) but regularly appear in nonwetlands (over 67 percent probability). Upland vegetation (UPL) rarely occurs in wetlands (less than 1 percent probability).

17. H.R. 961, supra note 4, § 803, at 264-65.

18. Id. at 292-93.

19. Id. at 270-71.

20. Id. at 274-75.

21. See David Coursen, Property Rights Legislation: A Survey of Federal and State Assessment and Compensation Measures, 26 ELR 10239 (May 1996).

22. H.R. 925, 104th Cong., 1st Sess. (1995) [hereinafter H.R. 925].

23. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

24. The Food Security Act of 1985 (FSA), Pub. L. No. 99-198, 99 Stat. 1504 (1985) (codified in scattered sections of 16 U.S.C. and elsewhere), as amended by the Agriculture Conservation and Trade Act of 1990, Pub. L. No. 101-624, 104 Stat. 3587 (1990). The FSA's resource conservation provisions, including Swampbuster, are codified at 16 U.S.C. §§ 3801-3862.

25. H.R. 925, supra note 22, § 3.

26. Id.

27. S. 605, 104th Cong., 1st Sess. (1995) [hereinafter S. 605].

28. Id. § 204(a)(2)(D).

29. H.R. 925, supra note 22, § 6(f); S. 605, supra note 27, § 204(f).

30. S. 605, supra note 27, §§ 403, 506.

31. See supra note 24.

32. See infra notes 163-82 and accompanying text.

33. WHITE HOUSE OFFICE ON ENVIRONMENTAL POLICY, PROTECTING AMERICA'S WETLANDS: A FAIR, FLEXIBLE AND EFFECTIVE APPROACH (Aug. 24, 1993).

34. Some of the policies were implemented in regulatory guidance letters (RGLs) providing interpretation of the regulations as issues of policy arise. Each RGL has an expiration date, usually three years after issuance. The RGLs in effect are published in the Federal Register at the beginning of each calendar year. See, e.g., 60 Fed. Reg. 13703 (Mar. 14, 1995). The Corps' policy is that expired RGLs that have not been specifically superseded or canceled continue to be appropriate guidance.

35. 60 Fed. Reg. 37280 (July 19, 1995).

36. Id. 58605 (Nov. 28, 1995).

37. Id. 38650 (July 27, 1995).

38. 58 Fed. Reg. 45008 (Aug. 25, 1993).

39. The agencies referred to are the Corps, EPA, the FWS of the Department of the Interior, and the Natural Resource Conservation Service (NRCS), formerly the Soil Conservation Service, of the Department of Agriculture. See WETLANDS DESKBOOK, supra note 2, at 8-9, 11, 73-76, for a fuller description of agency roles.

40. These issues will be discussed in a future installment of this supplement.

41. U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF DEFENSE, U.S. TECH. REP. 7-87-1, CORPS OF ENGINEERS WETLANDS DELINEATION MANUAL (1987) [hereinafter 1987 CORPS MANUAL].

42. This included the four lead agencies' 1989 JOINT MANUAL. FEDERAL INTERAGENCY COMMITTEE FOR WETLAND DELINEATION (U.S. ARMY CORPS OF ENGINEERS, U.S. EPA, U.S. FWS, AND U.S.D.A.'S SOIL CONSERVATION SERVICE), COOPERATIVE TECH. PUB., FEDERAL MANUAL FOR IDENTIFYING AND DELINEATING JURISDICTIONAL WETLANDS (1989) [hereinafter 1989 JOINT MANUAL]. The prohibition, known as the Johnston Amendment, was included in Title I of the Energy and Water Development Appropriations Act of 1992, Pub. L. No. 102-104, 105 Stat. 510 (1991). The amendment allows landowners who had delineations done under the 1989 JOINT MANUAL in permit or enforcement cases to request a redelineation under the 1987 CORPS MANUAL. The prohibition was continued in 1992. See Energy and Water Development Appropriations Act of 1993, Pub. L. No. 102-377, 106 Stat. 1315 (1992).

43. See WETLANDS DESKBOOK, supra note 2, at 14-15; NATIONAL ACADEMY OF SCIENCES, NATIONAL RESEARCH COUNCIL, COMMITTEE ON CHARACTERIZATION OF WETLANDS, WETLANDS: CHARACTERISTICS AND BOUNDARIES 73 (1995) [hereinafter NAS REPORT].

44. 56 Fed. Reg. 40446 (Aug. 14, 1991).

45. NAS REPORT, supra note 43, at 73-74; HOW WET IS A WETLAND?, supra note 15, at 19.

46. NAS REPORT, supra note 43, at 2.

47. U.S. EPA and U.S. Department of the Army, Amendment to the January 19, 1989, Department of the Army/Environmental Protection Agency Memorandum of Agreement Concerning the Determination of the Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions Under Section 404(f) of the Clean Water Act (Jan. 4, 1993) (available from the ELR Document Service, ELR Order No. AD-56).

48. NAS REPORT, supra note 43.

49. The author had the privilege of serving on this committee. Well aware of the policy debate, the committee made every effort to separate issues of delineation science from wetlands protection policy.

50. NAS REPORT, supra note 43, at 12.

51. Id. at 3-4.

52. Id. at 3.

53. Id. For example, hydrophytic vegetation is a biological feature, but algae or invertebrates may also be biological indicators of wetlands. Id. at 61. Wetlands scientists believe that certain wetlands can be characterized with algae, but the report does not establish delineation criteria for utilization of such alternative biological indicators.

54. Id. at 62.

55. Id. at 61-64.

56. Id. at 62.

57. The report is careful on this point. Rather than saying wetlands exist that do not reveal all three criteria, the report urges that indicators of two rather than three criteria may be sufficient for identification and delineation. See id. at 7-8, 137-44.

58. Id. at 216-26.

59. Id. ch. 8.

60. Apparently, the report failed to quiet the policy debate over "how wet is wet," because the House passed H.R. 961 without incorporating any of the NAS' recommendations.

61. 59 Fed. Reg. 2920 (Jan. 19, 1994).

62. Id., Memorandum of Agreement Among the Department of Agriculture, the Environmental Protection Agency, the Department of the Interior, and the Department of the Army Concerning the Delineation of Wetlands for Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food Security Act (dated Jan. 6, 1994) [hereinafter MOA on Agricultural Wetland Delineations] (available from the ELR Document Service, ELR Order No. AD-173).

63. See discussion of agriculture programs in WETLANDS DESKBOOK, supra note 2, at 73-76; see also NAS REPORT, supra note 43, at 65-74 for a discussion of the differences in delineation practices between the NFSM and the 1987 CORPS MANUAL.

64. See WETLANDS DESKBOOK, supra note 2, at 11.

65. MOA on Agricultural Wetland Delineations, supra note 62, 59 Fed. Reg. at 2921.

66. 57 Fed. Reg. 62312 (Dec. 30, 1992).

67. See 60 Fed. Reg. 13654, 13656 (Mar. 14, 1995).

68. See id.; see also NAS REPORT, supra note 43, at 209.

69. See A.B.A. SECTION OF NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW AND SECTION OF REAL PROPERTY, PROBATE, AND TRUST LAW, ENVIRONMENTAL ASPECTS OF REAL ESTATE TRANSACTIONS 610, 629 (James B. Witkin ed., 1995).

70. 60 Fed. Reg. at 13654.

71. United States v. Mills, 817 F. Supp. 1546, 23 ELR 21096 (N.D. Fla. 1993).

72. Id. at 1548, 23 ELR at 21096.

73. Id. at 1554, 23 ELR at 21100 (quoting Crandon v. United States, 494 U.S. 152, 158 (1990)).

74. Mills, 817 F. Supp. at 1554-55, 23 ELR at 21100. This kind of unfortunate judicial complaining while upholding the wetland delineation, the prosecution, and the restoration order, does not foster respect for the law. If the court's holding was correct, the judge's gratuitous policy comments were highly improper.

75. 809 F. Supp. 704, 23 ELR 20615 (D. Minn. 1992).

76. Id. at 709, 23 ELR at 20617; see also United States v. Pozsgai, 999 F.2d 719, 23 ELR 21012 (3d Cir. 1993) (upholding regulatory definition of wetlands notwithstanding absence of visible or traditionally navigable surface water).

77. 796 F. Supp. 180 (E.D. Pa. 1992), vacated & remanded on other grounds, 992 F.2d 470, 23 ELR 20836 (3d Cir. 1993).

78. 1987 CORPS MANUAL, supra note 41, at 83-92.

79. New Hanover Township, 796 F. Supp. at 184.

80. 961 F.2d 462, 22 ELR 21282 (4th Cir. 1992).

81. The landowner's separate plea to criminal wetlands violations is reported in WETLANDS DESKBOOK, supra note 2, at 58.

82. U.S. CONST. amend. V.

83. U.S. CONST. art. I, § 9, cl. 3.

84. An example of an ex post facto law is a law enacted after an action was committed, making the action illegal. The U.S. Constitution prevents application of such "after-the-fact" laws to conduct that occurs before their enactment.

85. This was also the theory the government used to prevail in cases claiming that the delineation manuals are regulations that must be proposed and open to public comment before being finalized. Since the 1989 CORPS MANUAL was not a regulation, the notice provisions of the Administrative Procedure Act, 5 U.S.C. § 553, did not apply. See WETLANDS DESKBOOK, supra note 2, at 16 & n.78.

86. Ellen, 961 F.2d at 466, 22 ELR at 21283.

87. Id. at 466-67, 22 ELR at 21283-84.

88. See WETLANDS DESKBOOK, supra note 2, at 17-19.

89. 33 C.F.R. § 328.3(a)(3) (1994).

90. Because the federal commerce power is the source of authority for other federal environmental regulation in addition to wetlands laws, it has been the subject of considerable commentary. See, e.g., John P. Dwyer, The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment, 25 ELR 10421 (Aug. 1995); see also infra notes 98-101 and accompanying text.

91. The regulations provide examples of the interstate commerce nexus, but do not include bird or wildlife habitat. The preamble to the 1986 regulations included migratory bird and endangered species habitat use as examples of appropriate Commerce Clause connection. 51 Fed. Reg. 41217 (Nov. 13, 1986). For a discussion of prior cases, see WETLANDS DESKBOOK, supra note 2, at 17-19 (including Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726, 19 ELR 20672 (E.D. Va. 1988), aff'd, 885 F.2d 866, 20 ELR 20008 (4th Cir. 1989) (addressing the absence of notice and comment on the migratory-bird standard)).

92. Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), cert. denied sub nom. Cargill, Inc. v. United States, 116 S. Ct. 407 (1995); see also WETLANDS DESKBOOK, supra note 2, at 16, 17.

93. Leslie Salt Co. v. United States, 660 F. Supp. 183, 17 ELR 21006 (N.D. Cal. 1987), judgment for plaintiffs, 700 F. Supp. 476, 19 ELR 20420 (N.D. Cal. 1989), rev'd & remanded, 896 F.2d 354, 20 ELR 20477 (9th Cir. 1990); cert. denied, 498 U.S. 1126 (1991), on remand, 820 F. Supp. 478 (N.D. Cal. 1992), reh'g denied, 1992 U.S. Dist. LEXIS 21115 (N.D. Cal. July 21, 1992), aff'd, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), cert. denied sub nom. Cargill, Inc. v. United States, 116 S. Ct. 407 (1995).

94. Leslie Salt, 55 F.3d at 1391-92, 25 ELR at 21047.

95. Because the issue had been addressed by the Ninth Circuit in its 1990 decision, see supra note 93, the procedure for raising it again on the second appeal required appellant Leslie Salt to ask the court to reverse itself. See Leslie Salt, 55 F.3d at 1392-93, 25 ELR at 21048.

96. Leslie Salt, 55 F.3d at 1395-96, 25 ELR at 21049-50.

97. Cargill, 116 S. Ct. at 407.

98. 115 S. Ct. 1524 (1995).

99. The potential impact of Lopez on environmental regulation was immediately clear: the Commerce Clause is the constitutional source of authority for the major federal environmental laws. See supra note 90.

100. Cargill, 116 S. Ct. at 407.

101. Id. at 409.

102. See WETLANDS DESKBOOK, supra note 2, at 18.

103. 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993).

104. See Hoffman Homes, Inc. v. Administrator, 961 F.2d 1310, 22 ELR 21148 (7th Cir. 1992).

105. See Hoffman Homes, Inc. v. Administrator, 975 F.2d 1554, 22 ELR 21547 (7th Cir. 1992).

106. Hoffman Homes, 999 F.2d at 260, 23 ELR at 21140-41.

107. Id. at 262, 23 ELR at 21141.

108. See Laguna Gatuna, Inc. v. Browner, 58 F.3d 564, 25 ELR 21192 (10th Cir. 1995), cert. denied, 116 S. Ct. 771 (1996).

109. 846 F. Supp. 892 (D. Guam 1994).

110. Id. at 893-94.

111. Id. at 894. In Slagle v. United States ex rel. Baldwin, the court rejected the defendant's assertion that the wetlands he filled were near to but not adjacent to navigable waters. 809 F. Supp. 704, 708-09, 23 ELR 20615, 20617 (D. Minn. 1992). The defendant argued that navigable waters had to be traditionally navigable, an assertion easily dismissed by the district court. It is not clear from the opinion, however, whether the wetlands were considered to be adjacent because there was a clear surface water connection, or because the court relied on a proven hydrological connection that may have been via groundwater or by virtue of the related system of waterways in the vicinity.

112. 838 F. Supp. 1428, 24 ELR 20749 (D. Colo. 1993).

113. Id. at 1432, 24 ELR at 20750.

114. 765 F.2d 126, 15 ELR 20530 (10th Cir. 1985).

115. 599 F.2d 368, 9 ELR 20542 (10th Cir. 1979).

116. Colorado Ref. Co., 838 F. Supp. at 1434, 24 ELR at 20751.

117. 968 F.2d 1438, 22 ELR 21337 (1st Cir. 1992).

118. Id. at 1444, 22 ELR at 21338.

119. Id. at 1450, 22 ELR at 21341.

120. Id. at 1451, 22 ELR at 21341 (citations omitted).

121. 873 F. Supp. 650, 25 ELR 20776 (S.D. Fla. 1995).

122. Id. at 658-59, 25 ELR at 20780.

123. Id. at 659, 25 ELR at 20780.

124. The regulatory definition of wetlands includes the condition that the feature must exhibit wetland characteristics "under normal circumstances." See 33 C.F.R. § 328.3(b) (1994); see also WETLANDS DESKBOOK, supra note 2, at 16. Golden Gate Audubon Society, Inc. v. U.S. Army Corps of Engineers, 700 F. Supp. 1549, 18 ELR 20992 (N.D. Cal. 1988), addresses how and when to assess normal circumstances.

125. See 51 Fed. Reg. 41217 (Nov. 13, 1986).

126. 988 F.2d 989, 23 ELR 20530 (9th Cir. 1993).

127. 33 U.S.C. § 1311(a), ELR STAT. FWPCA § 301(a).

128. Id. § 1344(a), ELR STAT. FWPCA § 404(a).

129. See, e.g., Kevin O'Hagen, Pumping With Intent to Kill: Draining Wetlands, 40 DEPAUL L. REV. 1059 (1991).

130. See WETLANDS DESKBOOK, supra note 2, at 25. This is referred to as the Tulloch settlement, based on the parties to the original lawsuit. See 57 Fed. Reg. 26894 (June 16, 1992).

131. 58 Fed. Reg. 45008 (Aug. 25, 1993).

132. 33 C.F.R. § 323.2 (1989).

133. Id. § 323.2(d)(3) (1995).

134. Id. § 323.2(d)(4).

135. American Mining Congress v. U.S. Army Corps of Engineers, No. 93-1754 (D.D.C. filed Aug. 24, 1993).

136. No. 3-CR-91-079 (M.D. Pa. May 18, 1992).

137. Personal communication between author and prosecutors.

138. 800 F. Supp. 1113, 23 ELR 21093 (W.D.N.Y. 1992).

139. 805 F. Supp. 234 (D. Vt. 1992), aff'd, 990 F.2d 729 (2d Cir. 1993).

140. Leslie Salt Co. v. United States, 820 F. Supp. 478 (N.D. Cal. 1992).

141. 815 F. Supp. 766, 23 ELR 21026 (D. Del. 1993).

142. Id. at 778-82, 23 ELR at 21032-34.

143. 56 Fed. Reg. 2411 (Jan. 22, 1991).

144. Salt Pond Assocs., 815 F. Supp. at 778-82, 23 ELR at 21032-34.

145. Id. at 782, 23 ELR at 21034.

146. See supra notes 130-31 and accompanying text (discussing proposed and final regulations controlling draining wetlands). The final regulations supersede RGL 90-5, which addressed "Landclearing Activities Subject to Section 404 Jurisdiction."

147. Florida Biodiversity Project v. Kennedy, No. 95-50-CIV-FTM-24D (M.D. Fla. filed Feb. 15, 1995, amended complaint filed Aug. 23, 1995). This case was settled with an agreement by the NPS to evaluate the use of off-road vehicles in Big Cypress under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

148. U.S. EPA and U.S. Department of the Army, Memorandum for the Field, Applicability of Clean Water Act Section 404 to Vehicle Use in Waters of the United States (Aug. 4, 1995) (available from the ELR Document Service, ELR Order No. AD-151).

149. For a general discussion on landclearing, see WETLANDS DESKBOOK, supra note 2, at 22.

150. 837 F. Supp. 1344, 24 ELR 20633 (E.D.N.C. 1992).

151. 33 U.S.C. § 1344(f)(1)(A), ELR STAT. FWPCA § 404(f)(1)(A).

152. Id. § 1344(f)(2), ELR STAT. FWPCA § 404(f)(2).

153. Tidwell, 837 F. Supp. at 1350, 24 ELR at 20635.

154. Id. (quoting § 404(f)(2)).

155. Tidwell, 837 F. Supp. at 1350, 24 ELR at 20636.

156. See 33 U.S.C. § 1365(f), ELR STAT. FWPCA § 505(f).

157. Tidwell, 837 F. Supp. at 1350-52, 24 ELR at 20635-36.

158. See WETLANDS DESKBOOK, supra note 2, at 22.

159. See RGL 93-3, Rescission of Regulatory Guidance Letters (RGLs) 90-5, 90-7, and 90-8, 60 Fed. Reg. 13712 (Mar. 14, 1995).

160. U.S. EPA and U.S. Department of the Army, Memorandum to the Field—Corps and EPA Regulatory Program Chiefs, Application of Best Management Practices to Mechanical Silvicultural Site Preparation Activities for the Establishment of Pine Plantations in the Southeast (Nov. 28, 1995) (available from the ELR Document Service, ELR Order No. AD-847).

161. Id. at 1. The term "mechanical silvicultural site preparation activities" is defined to include "shearing, raking, ripping, chopping, windrowing, piling, and other similar physical methods used to cut, break apart, or move logging debris following harvest for the establishment of pine plantations." Id.

162. 33 U.S.C. § 1344(f), ELR STAT. FWPCA § 404(f).

163. U.S. EPA and U.S. Department of the Army, Memorandum for the Field, Clean Water Act Section 404 Regulatory Program and Agricultural Activities (May 3, 1990) (available from the ELR Document Service, ELR Order No. AD-1292).

164. See 33 C.F.R. § 328.3 (1994).

165. 7 C.F.R. § 620.2 (1996).

166. Id. § 12.5(b)(5)(i) (1994).

167. 58 Fed. Reg. 17210 (Apr. 1, 1993).

168. Id.; see also supra note 124 and accompanying text.

169. 58 Fed. Reg. 45008 (Aug. 25, 1993).

170. 33 C.F.R. § 328.3(8) (1994). The last sentence of the regulation preserves an authority retained in the MOA on Agricultural Wetland Delineations, supra note 62. Under the MOA and the regulations, final authority for questions of CWA jurisdiction rests with EPA. See WETLANDS DESKBOOK, supra note 2, at 11.

171. See WETLANDS DESKBOOK, supra note 2, at 29.

172. See supra notes 160-61 and accompanying text.

173. 33 C.F.R. § 323.2 (1995); see also supra notes 133-34 and accompanying text.

174. 41 F.3d 117, 25 ELR 20343 (3d Cir. 1994), cert. denied, 115 S. Ct. 2610 (1995).

175. Id. at 121, 25 ELR at 20344.

176. Id.

177. 33 C.F.R. § 323.4(a)(1)(ii) (1994).

178. 33 U.S.C. § 1344(f)(2), ELR STAT. FWPCA § 404(f)(2).

179. Brace, 41 F.3d at 124, 25 ELR at 20345-46 (citations omitted). In an unpublished order in another case, the district court in North Dakota agreed with a long line of cases that hold that the defendant has the burden of proof that an exemption applies to his or her activities. United States v. Sargent County Water Resource Dist., No. A3-88-175 (D.N.D. Sept. 20, 1994); see also United States v. Huebner, 752 F.2d 1235, 1240, 15 ELR 20083, 20085 (7th Cir.), cert. denied, 106 S. Ct. 62 (1985); United States v. Akers, 785 F.2d 814, 819, 16 ELR 20538, 20541 (9th Cir.), cert. denied, 107 S. Ct. 107 (1986).

180. Brace, 41 F.3d at 126, 25 ELR at 20347.

181. Id. at 127, 25 ELR at 20347.

182. Id. The Brace opinion also disposes of the claim that the activities were exempt as drain maintenance. See id. at 127-28, 25 ELR at 20347-48.

183. For a thorough discussion of these issues, see Benjamin Grumbles, Section 404 and Agricultural Drainage Ditches, 17 WM. MITCHELL L. REV. 1021 (1991).

184. See WETLANDS DESKBOOK, supra note 2, at 18.

185. United States v. Sargent County Water Resource Dist., 876 F. Supp. 1081, 25 ELR 20922 (D.N.D. 1992).

186. 33 U.S.C. § 1344(f)(1)(c), ELR STAT. FWPCA § 404(f)(1)(c).

187. Sargent County, 876 F. Supp. at 1081, 25 ELR at 20922.

188. United States v. Sargent County Water Resource Dist., 876 F. Supp. 1090 (D.N.D. 1994).

189. Id. at 1099.

190. Id. at 1101.

191. Id.

192. Id. at 1103.

193. The hostility involved in the case drew commentary from the court, which chastised both sides for "a significant waste of the taxpayers' money" in pursuing the litigation. Id.

194. 33 U.S.C. § 1344(f)(1)(B), ELR STAT. FWPCA § 404(f)(1)(B).

195. 998 F.2d 196 (4th Cir. 1993).

196. Id. at 198.

197. Id. at 199.

198. Id. at 199-200.

199. Id. at 200.

200. Id. at 198.

26 ELR 10283 | Environmental Law Reporter | copyright © 1996 | All rights reserved