26 ELR 10339 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Recent Developments in Federal Wetlands Law: Part II

Editors' Summary: This Article is the second 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 the primer's publication. The Article first discusses nationwide and general permits under Clean Water Act § 404, including a new nationwide permit that applies to single-family homesites. Next, the Article discusses individual permits under § 404, focusing primarily on the permit process, mitigation issues, NEPA issues, and after-the-fact permits. It also covers EPA's authority under § 404(c) to veto U.S. Army Corps of Engineers-issued permits. Finally, the Article addresses enforcement issues, including statute of limitations, penalties, injunctive relief, and citizen suits. In discussing criminal enforcement, the Article emphasizes that § 404 violators face significant consequences for their illegal acts.

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 10339]

In 1993, ELR published a three-part primer on Federal Wetlands Law (the primer),¹ which was subsequently incorporated into the Wetlands Deskbook.² This Article is the second in a series intended to supplement the primer, focusing primarily on where wetlands law has changed since its publication. 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)

E. Nationwide and General Permits Under CWA § 404

The U.S. Army Corps of Engineers' (Corps') general permit program under CWA § 404 establishes authorization for certain categories of activities on a self-executing basis.³ It is essentially a "permit by rule," so that a person whose actions meet the criteria of a general permit may conduct those activities without obtaining an individual permit, as long as the person meets the standards established by the general permit. Nationwide general permits, usually referred to simply as "nationwide permits," are established by Corps headquarters⁴ and apply throughout the nation. Corps districts may establish regional or local general permits, which apply within that district or the location specified in the permit itself.⁵

The primer explained that the nationwide permit regulations were revised and reissued in 1991.⁶ Since then, there have been several administrative changes and some courts have addressed the program. The nationwide and general permit program remains controversial,⁷ but it does remain.

1. New Nationwide Permits

[] Single-Family Housing. In July 1995, the Corps issued a new nationwide permit for construction or alteration of single-family homesites affecting one-half acre or less of wetlands.⁸ [26 ELR 10340] This permit was part of the Corps' implementation of the Clinton wetlands policy, designed to ease some of the burden of the § 404 program by reducing the regulatory requirements for single-family homeowners.

The new nationwide permit applies to discharges into nontidal waters for the construction or expansion of singlefamily homes when the discharge does not cause the loss of more than one-half acre of wetlands. The permit requires preconstruction notification to the Corps, as well as minimization efforts. The new nationwide permit cannot be "stacked" with other nationwide permits, and may be used only once per parcel.⁹

The new nationwide permit was issued in conjunction with guidance concerning individual permit applications for small landowners.¹⁰ The guidance sets forth a presumption that fills of up to two acres for homebuilding or small businesses will have no practicable alternatives under the permit standards.¹¹

] [ State Program General Permits. To facilitate state participation in the § 404 program, Corps districts have discretion to develop general permits authorizing state-approved activities.¹² These state-program general permits are addressed more fully in the next installment of this supplement, along with other state program issues.

In Alaska, the Corps used the general-permit mechanism to try to streamline authorizations in connection with a wetland-classification exercise in the city of Anchorage. The Corps first assessed and classified the city's wetlands, ranking them according to function and value. The Corps then developed general permits that authorized certain activities in wetlands ranked as low-value. The general permits included general conditions, special conditions, and sitespecific conditions.

A coalition of environmental groups challenged the Anchorage general permits in Alaska Center for the Environment v. West.¹³ After plaintiffs filed a motion for summary judgment, the Corps agreed to take a remand and reconsider the general permits. Still not satisfied with the general permits the Corps issued after remand, plaintiffs renewed their motion for summary judgment on May 7, 1996. The case warrants watching as it proceeds.

2. Cases Involving Nationwide and General Permits

As seen in the cases summarized below, federal courts over the past few years have addressed the application of the general and nationwide permit program to specific activities.

Abenaki Nation of Mississquoi v. Hughes¹⁴ provides a full discussion of the relationship of the general permit program to other federal laws. The Corps' New England Region had issued a general permit to avoid duplication of regulatory authority with the Federal Energy Regulatory Commission (FERC) for new hydropower projects or expansion of existing projects that will cause minimal or no adverse environmental impacts. When the Corps authorized modification of a Vermont dam under this general permit, local opponents challenged the decision, including the general permit itself.¹⁵

The district court rejected the claim that the general permit was invalid because it had not been published in theFederal Register.¹⁶ In addition, the court upheld the general permit against claims under the National Environmental Policy Act (NEPA)¹⁷ and the Corps' own regulations.¹⁸ The court also rejected challenges to the dam-modification activity based on the National Historic Preservation Act (NHPA)¹⁹ and the Native American Graves Protection and Repatriation Act.²⁰ The court supported the Corps' ability to look at the whole proposal, including mitigation plans, in determining whether the proposal would have minimal adverse impacts and thus fall within the general permit's scope.²¹

In York Center Park District v. Krilich,²² the Seventh Circuit reversed a district court holding on the application of Nationwide 26, which authorizes fill impacting less than 1 acre of wetlands without predischarge notification to the Corps, but requires greater Corps review for fill impacting between 1 and 10 acres.²³ While developing residential property adjacent to a city park, defendant dredged ditches that transferred water from the park lake to artificial lakes in the subdivision.

In a decision laced with bankruptcy, tort, and attorneysfees issues, the appellate court overturned the district court conclusion that Nationwide 26 authorized Krilich's dredging on the park land. Without addressing whether Krilich had met the conditions for Nationwide 26 (e.g., area impacted or predischarge notification) the court held that defendant "could not use a nationwide permit to justify filling someone else's land. 'Nationwide permits do not authorize any injury to the property or rights of others.'"²⁴ In light of the fact that plaintiff park district was seeking tort damages for defendant's actions, the Corps' regulations regarding protection of property rights clearly applied.

The lower court decision in New Hanover Township v. U.S. Army Corps of Engineers²⁵ illustrates the controversy surrounding Nationwide 26. The township planned to build a landfill on property containing wetlands. The Corps and the township concluded that because the project would destroy only .96 acres of wetlands, Nationwide 26 was [26 ELR 10341] applicable in its "under one acre" form.²⁶ Project opponents claimed, among other things, that the landfill application misrepresented the facts and that the Corps should have demanded more information before accepting the claim that the impact on wetlands would be so limited.

The district court essentially upheld one of the primary policies behind nationwide permits — the balance of administrative simplicity with the burden on property owners. Plaintiffs had sought to impose on the Corps a greater duty to protect wetlands than the Corps' regulations require, but the court concluded:

It is not the Corps' duty to second-guess [the] application. The Corps' job is to inform an applicant whether the project it proposes will qualify for a [nationwide permit]. If the applicant gives the Corps information that bears no relationship to reality — regardless of the reason — the cost of the applicant's error falls on the applicant: No one is estopped from suing the applicant for violating the CWA if the actual project does not in fact qualify for a [nationwide permit].²⁷

The court also rejected the claim that Nationwide 26 could not be used because other parts of the landfill project would impact more wetland acreage. Plaintiffs argued that these later impacts would require additional § 404 permits. The court allowed that if such were the case, the township would have to obtain the permits.²⁸ For the single case before it, however, the district court upheld the application of Nationwide 26.

The district court had rejected the Corps' argument that the case was not ripe for judicial review because no landfill could be built without state certification pursuant to CWA § 401.²⁹ The Third Circuit, however, concluded that absent the state's § 401 certification, the case was not ripe.³⁰ The circuit court applied the familiar standard for ripeness, which considers whether the issues are fit for immediate review and whether the plaintiffs will suffer hardship if review is deferred. Until the project could go forward, the Corps' decision had no impact on the parties, and immediate review might prove unnecessary. For the same reason, the circuit court concluded that there was no hardship to the parties to wait and seek review if the state approved the project.³¹

The Corps prohibits "stacking" of general permits by persons seeking to avoid the individual permit requirement (i.e., projects cannot be split into smaller parts to avoid application of the § 404 regulations).³² However, there can be related projects that are so distinct that one part may qualify for a general permit while other parts will require individual permits. This was addressed in Abenaki Nation, in which parties challenging application of a Corps general permit complained that the establishment of mitigation wetlands, which was part of the project proposal, would require an individual permit. Based on this, they maintained that the whole project should be subject to individual permit review.³³ The court was able to reject this contention on several grounds, because it was far from certain that the establishment of mitigation wetlands would require any permit.³⁴ The mitigation wetlands were planned for previously drained farmland, on which hydrology was to be restored. Reintroducing water flow to the mitigation site probably would not require a permit. Moreover, the court stated that these later actions were separate from the hydroelectric-dam modification, and thus did not have to be considered in the same permit application.³⁵

The Corps' authority to suspend a nationwide permit for a wharf was confirmed in Donnell v. United States.³⁶ The Donnells had extended their pier by 20 feet, but the Corps had authorized a wharf for an abutting neighbor, which was to occupy the same area used by the Donnells' extended pier. The court rejected the Donnells' claim that their right to the benefits of Nationwide 26 was a property right and could not be withdrawn by the Corps.³⁷ The court upheld the Corps' authority, in administering the nationwide permit program, to condition or withdraw the authorization of a nationwide permit.³⁸

The Corps' authority to require an individual permit rather than allow activities to proceed under Nationwide 26 was addressed and upheld in O'Connor v. U.s. Army Corps of Engineers.³⁹ O'Connor maintained that his construction of part of a residential development would destroy only .41 acres of wetlands. The Corps, concerned with the impacts of the fill on the entire wetland ecosystem, sent a notice of violation and required O'Connor to file for an after-the-fact (ATF) individual permit. Resource agencies opposed O'Connor's ATF application, and the state denied waterquality certification. Based on the record, the Corps denied the ATF permit. O'Connor claimed that the ATF permit decision was unlawful because his actions had qualified for Nationwide 26.⁴⁰

The Corps' regulations authorize overriding nationwide permits under two circumstances, each highly discretionary. The first is when the activity impacts waters already identified by federal, state, or local agencies as having special importance.⁴¹ The second allows override on an individual basis when the Corps determines that the values protected by the CWA would be better served by the more thorough review of an individual permit.⁴² The court noted that for fill under one acre — for which notice to the Corps is not [26 ELR 10342] required by the regulations — there was some question whether the discretionary override authority applied.⁴³ The court was able to avoid this issue, however, by agreeing with the Corps that the construction would impact more than one acre of wetlands. Therefore, notice was required and the Corps, in turn, could require the individual permit application.⁴⁴

The court adopted a narrow view of the nationwide permit program, rejecting plaintiff's claim that an applicant's assertion of impacts under one acre automatically entitles that party to the nationwide permit.⁴⁵ Instead, the court upheld the Corps' view that the authorization of Nationwide 26 depends on the existence of minimal impacts on wetlands, which was assured by the Corps' discretionary, case-by-case review.⁴⁶

3. Alternative Procedures

Aside from the general permit program, the Corps has other means of authorizing certain activities without requiring an individual permit application. These are letters of permission (LOPs), joint procedures, and emergency procedures,⁴⁷ and are available on a case-by-case basis when the district engineer finds that their use is appropriate.

LOPs are abbreviated approvals processed without public notice but with coordination among the Corps and state and federal resource agencies.⁴⁸ They are intended for simple situations that the federal agencies have categorized. The regulations also encourage Corps districts to develop joint procedures with other agencies to expedite decisionmaking.⁴⁹ For example, the Corps general permit addressed in Abenaki Nation was to coordinate the decisionmaking processes of two federal agencies, the Corps and FERC.⁵⁰ Finally, Corps districts have authority to bypass permit procedures in emergency situations. These are circumstances that "would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship" if the normal permit process were followed.⁵¹

In sum, nationwide and general permits play a major role in the Corps' permit program. Many activities impacting wetlands will qualify for a nationwide or general permit, allowing the property owner to proceed in compliance with the law without a significant burden. At the same time, the individual and cumulative aspects of the "streamlined" general permit authorization to fill wetlands creates some concerns over the overall amount of wetland loss. The individual permit process, which is addressed next, provides for a more comprehensive review of proposals to fill wetlands.

F. Individual Permits

1. Processing Applications

The individual permit process has not changed significantly since publication of the primer in 1993. The Corps processes permits; applications are filed in the district office.⁵² In response to applicants' concerns that the U.S. Environmental Protection Agency (EPA) or the U.S. Fish and Wildlife Service (FWS) was effectively controlling the permit program, the Corps issued a policy statement in 1992 confirming that it is the decisionmaker for § 404 permits.⁵³ Still, the individual permit applicant must follow at least three sets of regulations. First, one set of Corps regulations establishes the procedures for processing permits.⁵⁴ Second, separate Corps regulations, referred to as the "public interest" standards, identify the substantive factors that the Corps evaluates in deciding whether to issue a permit and, if so, under what conditions.⁵⁵ Finally, the application must satisfy EPA's § 404(b)(1) guidelines, which are regulations that establish detailed environmental standards for discharges into water.⁵⁶

In 1993, the Clinton Administration announced its wetlands policy, which includes plans for streamlining wetlands permit processing.⁵⁷ As a result, discrete changes have been made to the process, addressing agricultural lands, certain small fills, expanded use of general permits, administrative appeals, and other aspects of the regulatory program. The policy did not call for a comprehensive overhaul of the individual permit process, and none has been initiated.

The burden of the individual permit process on private land development has been a major issue in the debate over reform of § 404. Indeed, a major theme in Congress has been a call to reduce the delay and uncertainty of the wetland program. A study prepared in 1994 critically analyzed the Corps' processing of major permit applications.⁵⁸ Reviewing the records of 410 individual permit applications the Corps processed in 1992, as well as other Corps data, the study found that processing a major permit application took, on average, over 373 days.⁵⁹ Approximately 93 percent of the individual permit applications took longer than the 60 days specified in the Corps regulations.⁶⁰ The report was addressed in congressional hearings on amendments to the [26 ELR 10343] CWA in 1995.⁶¹ Environmental groups and the Corps disputed its findings.⁶²

The Corps' statistics tell a story different from the report's. The Corps maintains that very few projects subject to the § 404 permit program experience delay. The Corps reports that in fiscal year 1994, 82 percent of the 48,000 wetlands applications it received were authorized, through general permits, within 16 days.⁶³ Less than 10 percent of the applications required individual permit review, and less than 0.7 percent of the standard permit applications were denied.⁶⁴ The Corps maintains that it has reduced the average time for individual permit review while handling a larger caseload.⁶⁵ The Corps has also made progress in reducing the backlog of permit applications that have been pending for over a year.⁶⁶

The reality is that major, controversial permit applications will consume a great deal of time. By the same token, small fills, especially those that qualify for a general permit, will experience little delay from Corps review.

Since the primer, there have been additional cases that have addressed elements of the permit process.⁶⁷ Some of the issues that recur in connection with § 404 permits involve evaluation of the environmental impacts of the applicant's proposal. This may arise in connection with claims under NEPA or in relation to application of the § 404(b)(1) guidelines or other substantive environmental rules. The availability of alternatives is a critical issue under both NEPA and the § 404(b)(1) guidelines. Mitigation issues are also significant, including how mitigation relates to the overall environmental impacts of an applicant's proposal.

This Article does not try to address all of the issues that may arise in connection with individual permit applications, but merely illustrates certain issues that have arisen in recent cases. Remember that many significant permit issues never see litigation, so knowledge of the procedures is critical. Before developing the application for an individual permit, the applicant should accept the Corps' invitation for early, informal consultation with the district office to identify issues.⁶⁸

2. Permit Procedures: Public Notice

The Corps is not required by statute or regulation to hold public hearings on wetlands applications. The regulations allow the district engineer to hold hearings in his or her discretion.⁶⁹

In Friends of the Payette v. Horseshoe Bend Hydroelectric Co.,⁷⁰ the court upheld the Corps' decision not to hold public hearings on a permit application for a power plant, even though there were 250 requests for hearing. The district engineer decided that a hearing would merely enable "project proponents and opponents to air their views," rather than provide useful information.⁷¹ Since the Corps was already aware of the strong views held by the public, it decided that no hearing was needed. The court held that this conclusion was not arbitrary or capricious.⁷²

3. Application of Corps and EPA Regulations

The Corps' "public interest" regulations require through analysis of environmental factors to support the district engineer's decision on whether issuance of a permit is "in the public interest."⁷³ Any number of issues can arise in the review of a permit application, but certain points of contention seem to recur, especially with hotly contested proposals. The cases repeatedly address whether the Corps has throughly evaluated the public interest.⁷⁴ One issue that frequently arises involves mitigation of wetland damage, and how the Corps evaluates such mitigation in reviewing the permit application. Another perennial problem is the application of the "practicable alternatives" standard found in the § 404(b)(1) guidelines.⁷⁵

] [ Mitigation Standards. The Corps' and EPA's memorandum of agreement (MOA) on mitigation for impacts of § 404 discharges (Mitigation MOA) remains the primary source of guidance used in the permit process.⁷⁶ Mitigation will be required in § 404 permits; terms are decided on a case-by-case basis. The Clinton wetlands policy encourages use of mitigation banks to assist in satisfying off-site mitigation requirements.⁷⁷ In late 1995, the Corps issued final guidance on the [26 ELR 10344] establishment, use, and operation of wetlands mitigation banks.⁷⁸

The guidance and standards clearly require an applicant to mitigate adverse impacts on wetlands, using "sequencing" of mitigation criteria. First, adverse impacts should be avoided. Second, onsite improvements or mitigation should be developed for those impacts that cannot be avoided. Third, and only if the first two are not feasible, off-site compensatory mitigation may be authorized.⁷⁹ The specifics of any mitigation package will vary with each permit application. Mitigation will be determined in negotiations with the Corps and with any other entities interested in the project.⁸⁰ Most disputes over mitigation will be resolved in these negotiations.

This status is partly due to the fact that the government has prevailed in preventing judicial review of the Mitigation MOA. In Municipality of Anchorage v. United States,⁸¹ the court dismissed a challenge to the Mitigation MOA on ripeness grounds. The court accepted the government's position that the MOA was merely interpretative and not a substantive regulation. The Administrative Procedure Act (APA), 5 U.S.C. § 553, requirement to provide notice and comment before rulemaking does not apply to interpretative rules, so there was no need to publish the MOA before it went into effect. The court also held that EPA and the Corps were not required to comply with NEPA in adopting the MOA, relying on cases holding that EPA's actions under the CWA are functionally equivalent to NEPA.⁸² The result of this decision is that the standards established in the Mitigation MOA are subject to challenge only as applied in specific permit situations.

One of the conflicting areas of the case law regarding mitigation involves whether the mitigation package developed as part of a permit application should be considered when the Corps looks at alternatives to the proposed action. In Town of Norfolk v. U.S. Army Corps of Engineers,⁸³ the court upheld the Corps' decision to issue a permit based on overall impacts as offset by the mitigation elements of the proposal, rather than requiring the Corps to assess the proposed project without considering possible mitigation. The Corps considered the mitigation package when it applied the "practicable alternatives" test. In particular, the court allowed the Corps to consider the functional value of an artificial wetland proposed as mitigation in a permit for a highway exchange that destroyed natural wetlands. The mitigation package was viewed to offset the harm of the proposal, so that the permit could be issued even though other alternative highway exchanges would have avoided destruction of the natural wetland.

Mitigation must be evaluated under NEPA as well as the CWA, but the approach differs under each statute.⁸⁴ For purposes of NEPA, proposals for mitigation of environmental impacts "are appropriately considered in determining whether a federal action will have a significant impact or not."⁸⁵ In short, the Corps can decide that an environmental impact statement (EIS) is not needed for a § 404 permit by considering the mitigation proposals to assess the overall environmental impacts of the permit. Under the Mitigation MOA, however, the government's "sequencing" approach seems to require that the project be assessed first without consideration of mitigation proposals. This leads to confusion regarding how to evaluate a project and the proponent's proposals for mitigation.

] [ Mitigation Banking Policies. The Corps, along with EPA, the FWS, the Natural Resources Conservation Service, and the National Oceanic and Atmospheric Administration (NOAA), issued final guidance on wetlands mitigation banking in 1995.⁸⁶ As mentioned, the Clinton wetlands policy expressed support for wetlands mitigation banks as a means of balancing the need for filling certain property with the need to maintain wetland resources.⁸⁷ The mitigation banking guidance is in the form of a memorandum to the field, rather than regulations. The guidance provides in a number of places that it is to be applied flexibly, as circumstances dictate.⁸⁸

Under the guidance, mitigation banking is defined broadly to mean "the restoration, creation, enhancement and, in exceptional circumstances, preservation of wetlands and/or other aquatic resources expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources."⁸⁹ This definition allows wetlands mitigation banks to be developed in a broad array of physical systems, including prior-converted wetlands, degraded wetlands, suitable nonwetlands, and existing wetlands. The ecological success of the mitigation bank is not measured by limitations in the definition, but rather by review of site selection and application of standards governing when credits in the bank can be sold.

The Corps will evaluate the ecological suitability of proposed wetland mitigation bank sites. Emphasis is placed on sites that will be self-sustaining over time, so that wetlands will thrive as a natural part of the environment.⁹⁰ The guidance also emphasizes that mitigation banks should be planned to address needs in particular watersheds, because [26 ELR 10345] credits for off-site mitigation will generally be limited to the same watershed as the permitted filling.⁹¹

] [ Alternatives Analysis. The analysis of alternatives in § 404 permit review remains controversial, and the decisions remain confusing.⁹² The requirement to look at alternatives to an applicant's proposal is found in the § 404(b)(1) guidelines, which provide, in part, that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less impact on the aquatic ecosystem."⁹³ For wetlands, which the regulations categorize as special aquatic sites deserving of additional protection, the regulations establish a presumption that if the project is not water-dependent, there must be alternative sites.⁹⁴ As a result, every applicant for a wetlands fill permit will need to show that there are no practicable alternatives to the proposed discharge.⁹⁵

The difficulty in applying the practicable alternatives test remains defining the applicant's project and its purpose, so that alternatives to the fill needed for that project can be evaluated. The regulations do not answer the question whether the applicant, the Corps, EPA, or public commenters have the final word in defining the project purpose. The regulations address this in the third party: "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes."⁹⁶

The Corps, in fact, encourages flexibility in application of the § 404(b)(1) guidelines. Regulatory Guidance Letter (RGL) 93-2, issued contemporaneously with the Clinton wetlands policy, addresses this matter.⁹⁷ The guidance is intended to clarify that major and minor projects should be approached differently under the regulations, with the degree of evaluation of alternatives tailored to the nature of the proposal. All types of projects do not require the same intensity of alternatives analysis. Rather, although the § 404(b)(1) guidelines must be satisfied for every project, the level of investigation and documentation should correlate to the project's potential adverse impacts to the aquatic environment. "A reasonable, common sense approach in applying the requirements of the [g]uidelines' alternatives analysis is fully consistent with sound environmental protection."⁹⁸

RGL 93-2 was part of the Clinton Administration's effort to demonstrate a fair and balanced application of the wetlands regulations. It also reflects an effort to reduce the regulatory burden. The guidance cautions against evaluating alternatives that are more costly than the proposed project.⁹⁹ In addition, for homeowners and small businesses, the guidance suggests that not only the cost of the project, but the general financial status of the applicant may be relevant in deciding what constitutes a practicable alternative.¹⁰⁰ An applicant's limited resources are not the primary consideration, but need to be included when looking at the entire project and its "practicable" alternatives. These standards push the test in the direction of favoring the applicant's definition of the project.

It is no surprise that the cases articulate varied standards for defining and evaluating a project purpose and its alternatives. This leads to different results in application of the § 404(b)(1) guidelines. Rather than trying to reconcile the recent decisions, this Article merely summarizes them. Applicants faced with this issue are advised to consult additional precedent as well, including Corps decisions in cases that were elevated under CWA § 404(q).¹⁰¹

In Conservation Law Foundation v. Federal Highway Administration,¹⁰² there seemed to be no dispute on the facts that plaintiffs' preferred alternative design for a highway project across Jamestown Island in Narragansett Bay, Rhode Island (the Jamestown connector) would reduce wetland impacts from 4.6 acres to 2.4 acres.¹⁰³ Even so, the court upheld the Corps' decision that the destruction of 4.6 acres was the "least damaging practicable alternative" despite the greater wetland damage. The court looked at all details of the project and found the permitted plan to be more "practicable" overall than plaintiffs' alternative.¹⁰⁴ The Corps, using information from the Federal Highway Administration, relied on the project's traffic-management elements (e.g., improving public safety and reducing local traffic) to conclude that only the raised-highway alternative was "practicable" because it was the alternative that best met all project purposes.¹⁰⁵ The alternative with less wetland filling "was deemed not practicable because it created 'traffic congestion and safety concerns by mixing … cross-is-land … [and] local traffic' and therefore did not 'conform to the stated purpose and need for the project.'"¹⁰⁶

Defining the project purpose is often a problem with respect to housing developments. In National Wildlife Federation v. Whistler,¹⁰⁷ planning for a residential development included dredging to reopen an old river channel that would provide property owners boat access to the Missouri River. In the process, approximately 14.5 acres of wetlands would be converted to deepwater habitat. By defining the project's intent as providing boat access, rather than housing, the Corps concluded that it was water-dependent. The [26 ELR 10346] applicant proposed to enhance an existing 20-acre wetland in compensation and this, with other review, caused the Corps to issue the permit. Challenging the permit issuance, plaintiffs argued that the Corps did not adequately consider the alternative of a public boat ramp.

The Whistler opinion upholds the Corps' narrow view of the project purpose. The Corps considered the project not to be housing with boat access, but solely boat access. The housing was on uplands, and did not need a CWA permit. Only the boat access needed the permit, and this was determined to be water-dependent. The court upheld the Corps' viewing the situation as "two severable projects" based on the applicant's presentation.¹⁰⁸

A different issue in the alternatives analysis arose in Town of Norfolk.¹⁰⁹ The applicant sought a permit to fill an artificially created wetland of 600 square feet to construct a landfill as part of the Boston Harbor cleanup. The town complained, among other charges, that the project would degrade groundwater and that the Corps failed to consider impacts to groundwater as part of the aquatic ecosystem when it conducted its review of practicable alternatives with fewer adverse impacts on aquatic ecosystems. The court upheld the Corps' determination, reviewing the split in case law over whether groundwater was within the CWA's aquatic definitions.¹¹⁰ Although impacts on groundwater could be considered an environmental consequence of the permit, the court held that groundwater need not be considered as a CWA aquatic ecosystem under the practicable alternatives test.¹¹¹

4. NEPA Issues

Like other federal agencies, the Corps must comply with NEPA. Most major § 404 controversies raise major NEPA issues as well. Because NEPA law is made in many other contexts,¹¹² this discussion is limited to summarizing certain recent cases illustrating NEPA issues raised specifically in the § 404 context.

Conservation Law Foundation,¹¹³ involving the Jamestown connector in Rhode Island, illustrates the interrelated NEPA and § 404 issues that can arise in connection with controversial federal projects. On Jamestown Island, the highway construction would require filling of ultimately 4.6 acres of wetlands. Because the connector had been the subject of highway plans for many years, parts of the project had undergone NEPA review by the U.S. Department of Transportation (DOT) in the past. Among the issues raised was whether the NEPA analysis was improperly segmented into parts, with the result that the full environmental impacts were not properly reviewed, or whether it was properly tiered to be tailored to the environmental information reasonably available at each stage. The court accepted the latter view. Rather than requiring another EIS, the stage of the project that included issuing the § 404 permit was allowed to proceed based on an environmental assessment (EA) and a finding of no significant impact (FONSI).¹¹⁴

Similarly, in Holy Cross Wilderness Fund v. Madigan,¹¹⁵ the court allowed the Corps to rely on an EIS prepared for the U.S. Forest Service that authorized a water-diversion project in the White River National Forest, outside Denver, Colorado. The project proponent needed a permit for certain filling, but the overall project was also projected to harm additional wetlands by virtue of the drawdown of water in the area.¹¹⁶ The Corps issued the permit subject to additional hydrologic field studies and with the condition that wetland loss be prevented. Under these circumstances, the court found no violation of either NEPA or the CWA.¹¹⁷ That is, because the Corps required the permittee to avoid wetlands losses, no further analysis in the record of those possible losses was required.¹¹⁸

Other recent NEPA cases in the § 404 context reiterate established principles. Corps' reliance on NEPA studies prepared by other agencies is regularly upheld in § 404 situations in which the Corps may be one of several federal decisionmakers.¹¹⁹ It is black-letter NEPA law that when there are no new environmental factors, the federal agency need not supplement prior NEPA studies.¹²⁰ This is true of the Corps' issuing a § 404 permit, even when the original NEPA work is done by another agency.¹²¹

Defining the scope of the Corps' § 404 involvement when a fill permit is needed for a portion of a larger project may be an issue in NEPA cases. The § 404 permit may be viewed by project opponents as an avenue to compel a review of environmental impacts unrelated to the filling activity. In California Trout v. Schaefer,¹²² project opponents failed to convince the court that the Corps was required to review independently all environmental impacts of a water-diversion project when it acted on a permit application to fill 4.18 acres of wetlands. The planned project had been subject to NEPA review by the Bureau of Reclamation. The court [26 ELR 10347] felt that the Bureau, not the Corps, had the primary responsibility for the project's overall environmental consequences, and that these duties had been satisfied with other NEPA documents.¹²³ The court was satisfied that considering the area of the wetland filling alone was sufficient for both NEPA and the CWA.¹²⁴

NEPA requires evaluation of mitigation measures.¹²⁵ This can be confusing in the § 404 context because, as mentioned, NEPA's mitigation requirements differ from § 404's mitigation requirements.¹²⁶ Friends of the Payette¹²⁷ illustrates the NEPA mitigation analysis. In that case, the court upheld the decision not to prepare an EIS on a permit application for a hydroelectric power project because the project, as planned with mitigation, would have no significant impact on fish in the bypass area of the river.¹²⁸ In deciding that an EA was sufficient, and no EIS was needed, the court considered the net impacts on wetlands assuming successful mitigation as proposed. The project with on-site mitigation was to impact approximately 24.69 acres of wetlands and the proponent planned to enhance and create approximately 66.64 acres of wetlands. Based on this plan, the court determined that there were not sufficient environmental impacts concerning wetlands to require preparation of an EIS.¹²⁹

5. Coordination With Other Agencies and Programs

The Corps' duty to consider the views of other agencies derives from several sources. The public interest regulations require consideration of a broad range of resource issues, including wildlife, water quality, economics, and general impacts of an application.¹³⁰ CWA § 404(m) provides the FWS with 90 days to comment on permits.¹³¹ Section 404(q) anticipates comments from EPA, the FWS, NOAA, and the DOT, by directing those agencies to develop agreements with the Corps to assure that permit decisions can be made within 90 days.¹³² Other federal statutes, such as the Endangered Species Act (ESA),¹³³ the NHPA, and the Fish and Wildlife Coordination Act,¹³⁴ apply independently and directly to the Corps.¹³⁵ Together, these authorities result in a significant level of interagency and interprogram coordination on § 404 actions. Indeed, the multiple layers of coordination with different agencies is one of the aspects of the wetlands program under attack in Congress.

The relationship between the ESA and the § 404(b)(1) regulations requiring evaluation of wildlife impacts is addressed in Town of Norfolk.¹³⁶ The ESA is triggered by the presence (or suspected presence) of species that are listed as threatened or endangered. The § 404(b)(1) regulations reiterate the ESA's prohibition on jeopardizing the continued existence of listed species.¹³⁷ In the absence of listed species, however, it is proper for the Corps to consider wildlife impacts under the § 404(b)(1) regulations rather than the ESA.¹³⁸

The relationship of the § 404 program to state or local development authorizations remains a problem in some cases. In Slagle v. United States ex rel. Baldwin,¹³⁹ plaintiff's position was strongly colored by his view that he had obtained the requisite local approvals and that no one told him he needed a CWA permit. Although the local government approved a subdivision plan that included draining and filling wetlands, the Corps was authorized, on the record, to deny the developer's ATF permit application.¹⁴⁰ The fact that the Corps had notice of the local government approvals and did not participate in the local proceedings did not provide grounds for estoppel against the federal government.¹⁴¹ Nor was it an error for the Corps to reach a conclusion different from the local government's. Slagle was required to comply with the Corps' permit requirements.¹⁴²

Pursuant to § 404(q), the Corps entered into new MOAs with commenting federal agencies in 1992.¹⁴³ These MOAs were intended to establish separate tracts for elevating interagency disputes when the issues involved a specific permit application rather than differences over broader policy concerns. The idea was to prevent individual permit applicants from being held hostage by the elevation of an interagency dispute over wetlands policy.

There were 14 elevations under the 1992 interagency MOAs between 1992 and 1996. Most involved individual permit applications, invoking part IV of the MOAs, which allows elevation of a permit decision if an aquatic resource of national importance (ARNI)¹⁴⁴ will suffer unacceptable adverse impacts from granting the permit. Most of the elevations involve whether there are practicable alternatives to the proposal.¹⁴⁵ The MOAs allow the Corps to consider [26 ELR 10348] the mitigation package when it evaluates the adverse impacts from granting the permit. Many of the elevations were resolved on the basis that the mitigation package sufficiently reduced or eliminated the alleged adverse impacts.¹⁴⁶ The § 404(q) elevation decisions provide additional guidance on administration of the permit program.

6. ATF Permits

A person who discharges fill material without a permit violates the CWA. ATF permits are available in certain circumstances to provide authorization for fill that has already occurred without a permit. The regulations and the case law, however, make it clear that the ATF permit is not a complete substitute for enforcement against the unpermitted action.

The Corps' regulations address ATF permit applications in connection with enforcement.¹⁴⁷ The Corps may require initial corrective measures before accepting an ATF application.¹⁴⁸ The regulations further provide that the ATF application will not be processed when federal, state, or local enforcement action is pending.¹⁴⁹ Nor will the application be accepted until federal legal action is completed, if the district engineer determines that legal action is appropriate.¹⁵⁰

In 1995, the Corps proposed an additional condition on the ATF permit.¹⁵¹ If the regulations are finalized, an applicant for an ATF permit will be required to sign an agreement tolling the statute of limitations that would otherwise govern the enforcement action. Of course, because the existing regulations allow the district engineer to refuse to consider the ATF permit application until the enforcement matter is resolved, the Corps' districts may implement this new requirement even in the absence of final regulations.

The government can and does deny applications for ATF permits, applying criteria for permit review no different from the criteria for a before-the-fact permit application.¹⁵²

An issue that sometimes arises is whether an ATF permit is required for work authorized by a government consent order. Similarly, an issue may arise over whether restoration or other activities in wetlands compelled by a government order require a permit.

The issuance of an EPA enforcement order does not vitiate the requirement for an ATF permit. In Orange Environment, Inc. v. County of Orange,¹⁵³ the county had filled at least one acre of wetlands as part of a landfill expansion. When EPA investigated the violation, a consent order was negotiated providing for off-site restoration of wetlands and allowing continued use of the landfill site. Citizens opposed to the project brought an action claiming that the county still needed a § 404 permit.

The court found that there were no cases precisely on point.¹⁵⁴ The EPA enforcement order did not specifically exempt the landfill operator from the § 404 permit requirement, and in fact provided that it was not a waiver or limitation of any CWA authority.¹⁵⁵ Because of these factors, the court required an ATF permit application. Perhaps because the issue arose in a citizen suit, the Orange Environment decision emphasizes the need for a permit proceeding to assure adequate public notice of fill activities.¹⁵⁶

7. EPA's Veto Authority Under § 404(c)

EPA's authority to veto a § 404 permit pursuant to § 404(c) remains highly controversial in the wetlands program. Section 404(c) allows EPA to determine that a location should not be used for filling because it will "have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."¹⁵⁷ Procedurally, if EPA vetoes a fill project, it initiates its separate administrative review when the Corps district engineer provides notice of intent to issue a permit (i.e., after the Corps has reviewed and approved the project).¹⁵⁸

The § 404(c) veto guarantees a prolonged, second administrative proceeding. The veto threat alone is powerful because the controversy surrounding the project that prompts the veto threat may delay the project to its destruction. Few private parties have the financial ability to sustain a project through a challenge to an EPA veto. On the other hand, the § 404(c) authority is a last-stage power of EPA to protect waters and wetlands from unacceptable adverse impacts, and it is used infrequently. As addressed in the primer, Congress knowingly gave EPA a role as an "environmental watchdog" over the Corps in the § 404 process.¹⁵⁹

Do not underestimate the government's staying power in the § 404(c) context. The veto in James City County v. U.S. Environmental Protection Agency¹⁶⁰ illustrates this point. [26 ELR 10349] When James City County, Virginia, made its plans to develop additional water supplies by damming portions of Ware Creek, it obtained the Corps' intent to approve a § 404 permit for the project. EPA, however, disapproved of the conversion of wetland and riverine habitat to the deepwater habitat that would accompany the project. The Agency consequently vetoed the project and the proponent sought judicial review. The proponent twice prevailed in the district court, and the case twice went to the Fourth Circuit before EPA's decision was ultimately upheld.

Initially, the veto was overturned based on EPA's approach to practicable alternatives. The district court felt that the Agency had improperly treated the project as non-waterdependent, and thus improperly presumed that there were less environmentally damaging alternatives.¹⁶¹ The Fourth Circuit affirmed on different grounds, overturning EPA's veto decision because it lacked substantial evidence on the issue of alternatives.¹⁶² The appellate court remanded the matter, allowing EPA to reconsider and base its veto decision on alternate grounds.

EPA's renewed veto determination was based solely on adverse environmental impacts, rather than available alternatives.¹⁶³ The district court again reversed the Agency, noting that EPA failed to consider the impacts of lack of water supply to James City County.¹⁶⁴

When the case again reached the Fourth Circuit, EPA finally prevailed.¹⁶⁵ The court upheld both the veto and EPA's authority to exercise its § 404(c) authority on environmental grounds alone; the Agency was not required to consider the county's water needs. The government even convinced the Fourth Circuit to revise its standard of review. While the first appeal had articulated a "substantial evidence" standard, the second appeal provided that the standard of review for § 404(c) actions was the "arbitrary and capricious" test.¹⁶⁶

A threatened § 404(c) veto played a major role in ultimately stopping a power transmission line that would have crossed wetlands in western Florida. After the Corps indicated its intent to issue a permit to Florida Power Company, EPA Region 4 disagreed with the determination. The dispute over wetlands involved a difference of view on the impacts. The Corps and Florida Power felt that the power lines would have minimal impact, measured by the very small area of filling that would be required. EPA and area landowners, in contrast, felt that the long-term intrusion of the power lines, with periodic maintenance and other uses of the right-of-way, would dissect and destroy an entire ecosystem. The application was elevated under § 404(q), and the Corps authorized issuance.¹⁶⁷ The threat of a veto still loomed, however, and because it faced potentially years of additional proceedings, Florida Power decided not to go forward with the project.

8. Conclusion: Individual Permits

When a project requires an individual § 404 permit, early planning is the key. All aspects of the regulations, not just the points addressed above, need to be digested. Applicants should be aware of current policies regarding mitigation and should consult early and often with both the Corps and coordinating federal andstate agencies. As reflected in the law regarding enforcement, which is addressed next, the best defense is avoiding enforcement by assuring that wetlands filling is properly permitted.

G. Enforcement

Enforcement actions against § 404 violators can result in significant consequences. The violator risks civil penalties and restoration orders, as well as increasing exposure to criminal liability. A number of cases have addressed basic issues of enforcement authority.¹⁶⁸ In addition, the cases reflect the trend toward imposition of severe penalties for wetland violators. There is no preenforcement review of federal notices of enforcement, such as cease-and-desist letters or notices of violation; if one is threatened with enforcement, immediate judicial review will not be available. Defendants must take enforcement actions seriously because the cases clearly demonstrate that resistance and recalcitrance are very severely punished.

Wetlands violators are subject to the full arsenal of enforcement tools provided to the government under CWA § 309, including administrative orders and penalties, civil actions, criminal penalties, and inspections and document requests.¹⁶⁹ Citizen suits under CWA § 505¹⁷⁰ continue to play a role in wetlands enforcement as well. Although some judges have expressed frustration with the reach of wetlands enforcement,¹⁷¹ most enforcement decisions illustrate that federal courts treat these violations very seriously.

Enforcement actions can be initiated by the Corps, EPA, or other federal agencies. There are no formal procedural prerequisites, although as a general matter EPA or the Corps will investigate alleged wetlands violations. The Corps has a policy of providing notices of violation, which give the violator a chance to correct the problem before more serious enforcement steps are pursued.¹⁷² But don't count on getting any prior notice when a violation is being investigated by EPA or the Federal Bureau of Investigation.

This Article summarizes certain enforcement issues that have been addressed in recent years. Enforcement authorities are covered more fully in the primer.¹⁷³

[26 ELR 10350]

1. Statute of Limitations: Continuing Violations?

Because it often learns of wetlands violations well after the fact, the government has tried to develop case law under which it can avoid any statute of limitations or other doctrine of repose. This can be accomplished by standards that establish when the limitations period begins to run. For example, should it run from the time of the unpermitted filling or from the time the violation is discovered? It can also be accomplished by a rolling or continuing violation theory, under which the limitations period — whenever it began — is continually restarted as long as the violation continues. For wetlands, this theory is based on the continued presence of the fill. Arguably, until the fill is removed it continues to injure the wetland resource.

One court faced with this issue avoided the continuing violation theory by holding that the statute of limitations runs from the date of discovery of the violation, rather than the date of the filling. In United States v. Windward Properties, Inc.,¹⁷⁴ defendant was prosecuted for filling wetlands while building a lake as part of a housing development. The parties agreed that the five-year statute of limitations for civil actions, 28 U.S.C. § 2462, applied. They disagreed, however, over when the government's claim accrued under the statute.¹⁷⁵

The court held that the accrual date was based on the discovery rule, under which a claim accrues from the time the plaintiff knew or should have known of the claim. The court felt that adoption of this standard best carried out the CWA's goals, noting that "due to the nature of many CWA violations, immediate detection is difficult, if not impossible."¹⁷⁶ Having adopted the discovery rule, the court did not have to address whether the fill remaining in place constituted a continuing violation.¹⁷⁷

The district court in United States v. Telluride Co.¹⁷⁸ rejected this approach and accepted defendant's argument that the CWA penalizes the discharge of pollutants, not the continuity of adverse impacts resulting from a discharge. "It is undisputed that the damage caused by filling wetlands continues long beyond the actual discharge. Nevertheless, to adopt the government's position, would be to rob 28 U.S.C. § 2462, the agreed statute of limitations, of any meaning in the CWA context."¹⁷⁹ The court thus held that the limitations period begins to run when the discharge occurs and continues to run for five years thereafter.

The court in Telluride also addressed the doctrine of equitable tolling, which provides that an otherwise applicable statute of limitations will be tolled if a plaintiff is actively misled or lulled into inaction by the defendant.¹⁸⁰ The government sought to have the statute tolled for the period during which the parties were negotiating a consent decree, before the government filed a complaint in 1993. The first decision in the case, in 1994, was the district court's rejection of that negotiated consent decree and order.¹⁸¹ In the subsequent enforcement case, the government sought to have the court apply equitable tolling in furtherance of the public policy supporting settlement of litigation. The court, however, determined that equitable tolling only applied when some force outside the plaintiff's control accounted for the delay in filing suit.¹⁸²

The continuing violation theory was accepted and applied in Sasser v. Administrator.¹⁸³ In this instance, however, the theory was used not for purposes of the statute of limitations, but to establish jurisdiction over the claim. Although the court action was initiated within the five-year limitations period, the filling had occurred in 1986, before the CWA was amended in 1987 to allow the imposition of administrative penalties. The court held that the violation continued after 1987 because the fill remained in place. Thus, administrative penalties authorized by the 1987 amendments could be imposed.

The fate of the continuing violation theory in wetlands cases will be guided by a significant environmental enforcement decision not involving wetlands. In 3M Co. v. Browner,¹⁸⁴ an EPA administrative law judge (ALJ) had rejected a statute-of-limitation defense raised by 3M to an administrative penalty action that alleged violations of the Toxic Substances Control Act.¹⁸⁵ Reviewing 28 U.S.C. § 2462, the D.C. Circuit on appeal concluded that an action to assess or impose an administrative penalty had to be commenced within five years of the violation.¹⁸⁶

The decision rejects the discovery rule adopted in Windward Properties.¹⁸⁷ The court found that the discovery rule was intended for situations in which the injury was not discovered until sometime after its initial cause. In contrast, when enforcing environmental laws, the government was prosecuting a violation.

In an action for a civil penalty, the government's burden is to prove the violation; injuries or damages resulting from the violation are not part of the cause of action; the suit may be maintained regardless of damage. Immediately upon the violation, EPA may institute the proceeding to have the penalty imposed.¹⁸⁸

The court heard and rejected the government's arguments that environmental violations are difficult to discover and are often not disclosed until self-reported or uncovered in a review of industry reports. The court would not accept a discovery rule simply because the government considered the laws hard to enforce.

We cannot understand why Congress would have wanted the running of § 2462's limitations period to [26 ELR 10351] depend on such considerations…. An agency's failure to detect violations, for whatever reasons, does not avoid the problems of faded memories, lost witnesses and discarded documents in penalty actions brought decades after alleged violations are finally discovered. Most important, nothing in the language of § 2462 even arguably makes the running of the limitations period turn on the degree of difficulty an agency experiences in detecting violations.¹⁸⁹

Because 3M Co. was based on construing 28 U.S.C. § 2462, it will have to be followed or distinguished in all environmental enforcement cases, including wetlands actions.

2. No Jury Trial for Administrative Penalties

As reported in the primer, the wetlands defendant is entitled to a jury trial in civil judicial enforcement actions in which the government seeks a penalty.¹⁹⁰ With the increase in administrative enforcement actions that impose penalties, the issue has arisen over whether the Seventh Amendment right to jury trial applies to administrative enforcement.

In Sasser, the court decided that EPA civil penalty actions do not require a jury.¹⁹¹ An EPA ALJ imposed a $ 125,000 fine on Sasser for illegally filling an impoundment intended to create a duck hunting pond. Sasser invoked the Seventh Amendment, which preserves the right to a jury trial in suits "at common law, where the value in controversy shall exceed twenty dollars."¹⁹² In rejecting Sasser's claim and upholding the penalty imposed, the Fourth Circuit relied on case law that holds that the Seventh Amendment does not apply to statutory public rights.¹⁹³ The court construed the congressional establishment of an administrative penalty to be within the realm of statutory public rights, rather than a common-law controversy.¹⁹⁴ As a result, the constitutional right to a jury trial does not apply.

3. Penalties

The CWA's civil penalty authority is $ 25,000 per day of violation.¹⁹⁵ Although, as previously discussed, courts seem to be rejecting the idea that a wetland violation "continues" for purposes of the statute of limitations, the government has solid precedent for the principle that a wetland violation continues to accrue per-day penalties each day the fill remains in place.¹⁹⁶ Penalties at these levels can quickly reach very high levels. The cases reflect that the penalty levels being awarded for wetland violations are increasing.

] [ Must Penalties Be Imposed? An issue that has arisen in CWA cases is whether, on finding a violation, a court has discretion not to impose a penalty. Section 309 is written in mandatory terms:

Any person who violates [certain provisions of the CWA] … shall be subject to a civil penalty not to exceed $ 25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.¹⁹⁷

This language only establishes criteria for setting penalty levels; it does not expressly provide authority for a court not to impose a penalty if a violation is found.

There is ample precedent for the proposition that § 309(d) "requires that the Court impose some fine upon each Defendant."¹⁹⁸ In light of this, it may be difficult for a defendant to avoid the imposition of some civil penalty when a violation is found.

] [ Penalty Levels Are Increasing. Other recent cases reflect the magnitude of penalties in wetlands cases, whether by settlement or by decree. The general rule is that penalty levels are increasing.

Westinghouse Bayside Communities, Inc. of Bonita Springs, Florida, agreed to a $ 1.3 million settlement for filling isolated wetlands near the Gulf of Mexico as part of its multi-use Pelican Landing development.¹⁹⁹ The settlement involved restoration of the illegally filled area, estimated to cost $ 110,885; a civil penalty of $ 199,088; and a wetlands mitigation/enhancement project, involving a 98-acre wetland habitat to be developed over a five-year period, estimated to cost $ 1,000,912.

In Sasser,²⁰⁰ the defendant sought to restore dikes at abandoned rice fields to enhance a duck hunting pond. After his permit application was denied, he reconstructed the dikes anyway, on the advice of counsel that his work was covered by a nationwide permit. EPA assessed a $ 125,000 administrative penalty, which was upheld on judicial review.

When faced with civil enforcement, it is important to remember that the CWA's penalty standards are applied in cases other than wetlands. A defendant should consider EPA penalty policies and case law developed in enforcing other CWA provisions and similar laws. For example, enforcement of other CWA violations has resulted in decisions emphasizing the relationship of the penalty to the economic benefit of the violation.²⁰¹ These standards will also be applied, as appropriate, in wetlands cases.

[26 ELR 10352]

[ [ Penalties Die With the Violator. Illustrating the proverbial mixed blessing, a civil penalty does not survive the wrong-doer's death. A long-standing case involving fill that damaged 300 acres of wetlands resulted in a decision addressing the liability of successors to a violator. In United States v. Edwards,²⁰² the government filed its enforcement action against Joseph Carter, who had conducted the illegal filling. The defendant had removed vegetation and converted wetlands to agricultural use with earth-moving equipment. After a consent injunction and partial summary judgment on liability were entered in the case, defendant Carter died. Elizabeth Edwards, Executrix of Carter's estate, was substituted as a party defendant in the action.

The issue remaining for the court was remedy. The court required the Executrix to complete the ordered wetlands restoration work. Whether a penalty should be imposed involved consideration of whether the CWA penalty "abates upon the death of the wrongdoer."²⁰³ The governing principle is that actions on penal statutes do not survive a person's death.²⁰⁴ However, federal law provides that "civil actions for damages … commenced by the United States" do not abate on the death of the defendant.²⁰⁵ Thus, the key issue was whether the CWA civil penalty was "penal" or an action "for damages."

The court concluded that the CWA penalty was penal and did not survive the defendant's death, because: "1) the purpose of the [CWA] is to redress a general wrong to the public and 2) any recovery of the civil penalty would go to the government and not to an individual who has been harmed by the defendant."²⁰⁶ The court relied most heavily on the fact that penal actions address public rights and interests; the CWA civil penalty fit this standard.

4. Settlement

] [ Judicial Rejection of Consent Decree. Pursuant to regulations, the U.S. Department of Justice (DOJ) provides public notice of consent decrees settling environmental enforcement litigation, including wetlands cases.²⁰⁷ A consent decree will be lodged with the court, subject to a public comment period, usually of at least 30 days. The DOJ reserves the right to withdraw from the settlement based on the comments, although the defendant may not. If the government seeks to have the consent decree approved by the court, it prepares a response to the comments, which is filed with a motion to enter the decree. It is unusual for a court to reject a settlement, particularly if there is no third party strongly protesting its terms. However, one wetlands case provides vivid insight into the concerns the courts may have in approving such decrees.

In Telluride,²⁰⁸ a district court judge rejected a consent decree for wetlands violations that was negotiated before and filed together with the complaint in court. In a lengthy decision explaining why the settlement was unacceptable, the district court provided a thorough assessment of the factors that should enter into resolution of wetlands violations. The Telluride Company had filled approximately 44.5 acres of wetlands without a permit. EPA negotiated an agreement that required restoration of 15.43 acres of wetlands; 26.5 acres of off-site compensatory wetlands mitigation, located 60 miles away in a different watershed; a penalty of $ 143,000; and additional wetlands preservation worth approximately $ 42,000.²⁰⁹

The court was distressed that the parties had reached the settlement before a complaint was even filed, and expressed concern that the "adversary system," which would assure an arm's-length resolution, had not "functioned" properly.²¹⁰ The judge was unconvinced that the proposed settlement protected the public interest. EPA had relied on Telluride's contractor and did no independent work to assess alternative environmental remediation that might be developed.²¹¹ The court found that the civil penalty was less than the cost of an average lot in the development. The judge therefore rejected the mitigation package as insufficient to compensate for the destroyed wetlands.²¹²

Although the government eventually "lost" the case,²¹³ this is one loss that it will use aggressively in future negotiations with wetland violators. The decision soundly supports some key remedial elements: imposition of at least a one-to-one ratio of restoration wetlands for filled wetlands; off-site mitigation near the site of the violation and in the same watershed; penalty levels measured by the economic value of the project; and independent evaluation of mitigation plans including plans for monitoring. The government will no doubt insist that future settlements meet the criteria established in Telluride.

5. Injunctive Remedies

Before the recent expansion in criminal environmental enforcement, wetlands violations were generally subject to civil prosecution to obtain injunctive relief to remedy the harm to the wetland resource. A court injunction can impose the remedy of restoration in flexible ways, tailored to the violation and other pertinent circumstances. In a criminal case, the government may seek restitution to the environment to obtain relief comparable to a civil injunction.²¹⁴

United States v. Van Leuzen²¹⁵ illustrates both the breadth of authority federal district courts have when imposing injunctive relief and the high risks a violator takes in ignoring the Corps' warnings of wetlands violations. When the first page of an enforcement decision has the following [26 ELR 10353] language, the violator knows that he is in trouble: "As will be herein discussed in detail, this case presents a disturbing and frank contrast between what is perceived as environmentally acceptable by an appallingly large number of Americans, versus what is actually and critically in the best interest of all of us."²¹⁶

With the help of an engineer who was also prosecuted, Van Leuzen filled .415 acres of wetlands (approximately 18,000 square feet) at his homesite in coastal Texas, and moved a house to the site, on which he also built a concrete deck, sidewalks, and driveway. This work was conducted without a § 404 permit and after Van Leuzen had received numerous oral and written cease-and-desist orders from the Corps and EPA. He simply ignored the orders and continued his work, prompting the court to chide:

Attitudes like Defendant Van Leuzen's are beyond self-ishness. Unchecked, they are the seeds of national, environmental suicide. Congress has sought a balance between the absolute needs of our ecosystem, and the right of any landowner to fairly enjoy his or her property. Safeguards are provided for all, by means of the permitting process administered by the [Corps]. Complete disregard of that process benefits no-one, and will not be tolerated by this Court.²¹⁷

The court then imposed a very severe remedy on Van Leuzen and the engineer he had hired. Each defendant paid civil penalties. The engineer was disgorged of one-half of his profits, a $ 900 penalty, payable at $ 50 per month because the defendant was destitute.²¹⁸ Van Leuzen's fine was integrated into a payment system to assure complete restoration of the property. He was ordered to remove all fill other than that actually supporting the house and driveway, and he was allowed a life estate at the site. He was required to pay $ 350 per month for not less than 8 nor more than 12 years to establish a fund for removal of all remaining structures after his death or after he moved from the property.²¹⁹ The court arrived at the ordered amounts after considering defendants' expenses and sources of income.

Consistent with the outrage the judge expressed throughout the Van Leuzen opinion, the court also imposed a remedy designed to inform the community of the risks of violating wetland-protection laws. The court required Van Leuzen to post a large billboard near the property, facing the highway and specifically identifying the ongoing work as wetlands restoration for illegally filling wetlands.²²⁰

Injunctive relief is within the equitable discretion of the federal court. However, "for wetlands violations, courts have repeatedly awarded total restoration of the wetlands especially in cases where the defendant has acted willfully."²²¹ The cases demonstrate that it is not inequitable to require complete removal of illegal fill.²²² The primer addresses this issue more fully, pointing out situations in which injunctive relief was rejected as inequitable.²²³

Absent a specific provision in the court order or the administrative order, defendants conducting remedial wetland actions are not excused from the obligation to obtain a permit. If the actions would require a permit in the absence of the order, the defendant will have to be specifically excused from the permit duty in the decree.²²⁴

6. Criminal Enforcement

In recent years, criminal enforcement of wetlands violations²²⁵ has proven to be a proverbial double-edged sword of the § 404 program. Several criminal defendants were involved in relatively small filling activity on homestead properties. Opponents of the § 404 program have used these cases to gain publicity with the specter of an ecocentric enforcement movement gone amok against individuals trying to improve their yards.²²⁶ On examination, and fully reflected in the court opinions, these same situations actually involved individuals who ignored repeated instructions from the Corps to cease filling, and who flagrantly continued to violate the law in the face of clear warnings of the consequences.²²⁷ The government has prevailed in the courts, obtaining fines and incarceration, but the wetlands program may have lost a great deal in the court of public opinion.

] [ Examples of Criminal Enforcement. John and Gizella Pozsgai became relatively famous wetlands violators, as their criminal prosecution resulted in considerable press and legislative attention.²²⁸ John Pozsgai was found guilty of illegally filling wetlands and initially sentenced to 3 years imprisonment, followed by 5 years probation and 1 year supervised [26 ELR 10354] release, plus a total fine of $ 200,000 ($ 5,000 on 40 counts). The initial criminal sentence had been appealed and returned to the lower court for reassessment. In reducing the fine to $ 5,000 based on Pozsgai's ability to pay, the district court on remand summed up the propriety of the criminal prosecution:

There is no doubt that Mr. Pozsgai was a stubborn violator of the Federal laws designed to protect the environment. He may not agree with those laws but when he's told in September of 1987 by the [Corps] that his unauthorized filling was in violation of the [CWA] and he's directed to cease and desist, when he ignores that notice and continues to deposit fill, when the EPA notifies him in December of 1987 that his filling without a permit is a violation of the [CWA] that could subject him to penal sanctions and after receiving that notice he continues to fill, when the [Corps] issues him a second violation notice on December 17 reiterating the earlier warnings and advising him to stop his unlawful filling and Mr. Pozsgai continues to fill, when in August of 1988 a Judge of this court orders him to stop filling and Mr. Pozsgai continues to fill, then it seems to me that the Government has no alternative but to use the criminal process to make him stop.

… So far as Mr. Pozsgai thinks he's some kind of hero, he's just dead wrong. He's brought disaster on himself and his family. He's no hero. He's a criminal and he's paying the price for it regretfully I must say. He's still in the custody of the Attorney General.²²⁹

Pozsgai's trouble with the law did not end with the criminal prosecution. To obtain restoration, the government filed a civil action against him in 1992.²³⁰ A permanent injunction was entered ordering that restoration be implemented in accordance with a Corps-approved plan. On appeal from this order, the court rejected various defenses to enforcement that Pozsgai raised. After thoroughly reviewing the facts and the law concerning CWA regulatory authority, the court found that the wetlands were within CWA jurisdiction.²³¹ The opinion addresses each defense in detail and upholds the government's enforcement actions. It cannot be said that Pozsgai failed to get due process.

The court in United States v. Mills²³² expressed greater sympathy for convicted wetlands violators than did any court for Pozsgai. Ocie and Carey Mills, father and son, were found guilty in a jury trial of five counts of filling wetlands without a permit. They were each sentenced to 21 months incarceration, 1 year supervised release, a $ 5,000 fine, and a restoration requirement. After the court held a hearing on the restoration plan, the Millses claimed that parts of the property were not wetlands, and moved to set aside or vacate the sentence in part.²³³ The wetlands at issue were nonadjacent and had been cut off from water by actions by persons other than the Millses. The court reviewed the cases supporting the Corps' regulatory authority over nonadjacent waters and concluded that the property was within CWA jurisdiction.²³⁴

The issue was framed as a matter of unconstitutional delegation of legislative power. The Millses argued that Congress could not delegate to the Corps and EPA the authority to include "wetlands" within the CWA's definition of "waters of the United States":

In short, [defendants] point out that there is no statute that makes it a federal crime to place clean, unpolluted sand on dry appearing land, as the Millses were convicted of and for which they each served 21-months federal prison terms. Thus, their argument goes, it is unconstitutional for the Corps to usurp the legislative task of defining "waters of the United States" to include land that may have wetland vegetation growing on it.²³⁵

Although not happy with the result, the court concluded that there was not an unlawful delegation of legislative authority.²³⁶

Similar issues involving the federal government's legal authority to regulate wetlands were raised in United States v. Wilson,²³⁷ a Maryland prosecution. After a 7-week trial, a jury convicted a real-estate development company and its chairman of 4 felony counts of illegally filling 70 acres of wetlands. Defendants, who plan to appeal, argued unsuccessfully that the wetland definitions were too vague and confusing to support a criminal conviction.²³⁸

In United States v. Suarez,²³⁹ the court rejected defendant's claim that because his defense attorney failed to preserve the issue of jurisdiction over isolated waters, defendant was denied effective counsel. Recognizing that the issue of CWA jurisdiction was "unsettled," the court was able to conclude that the alleged error did not effect the outcome.²⁴⁰ The decision impliedly rests on the view that special familiarity with wetlands law is not necessary to render effective defense counsel in a criminal case. Suarez, convicted and sentenced, probably does not agree.

] [ Sentencing Guidelines. Application of the U.S. Sentencing Guidelines²⁴¹ to wetlands violations is addressed in United States v. Ellen.²⁴² Convicted of 4 counts of illegally filling wetlands, Ellen appealed a sentence based on a total offense level of 12.²⁴³ The district court had calculated the sentence from a base level of 6,²⁴⁴ and imposed a 4-level upward adjustment based on the continuous and ongoing release of the pollutant into the environment, and another 2-level upward adjustment based on the failure to obtain a permit. Ellen argued [26 ELR 10355] that these upward adjustments were unwarranted because he was a first-time offender and because filling wetlands was a nonserious offense.²⁴⁵

The court's rejection of this appeal was harsh and revealing. After describing the public health and welfare goals of the CWA's prohibition on discharge of pollutants without a permit, the court concluded:

Ellen's actions caused the destruction of substantial habitat and of approximately 86 acres of environmentally critical wetlands — damage that will cost an estimated $ 1 million to remedy. That Ellen believes that an offense of this magnitude is trivial or unimportant ironically exemplifies the need not to foreclose punishment by imprisonment in enforcing laws aimed at environmental protection.²⁴⁶

The court also found that the two upward adjustments did not violate the principle of double-counting under the Sentencing Guidelines, because the adjustments were for different offenses.²⁴⁷

The United States also unsuccessfully sought an additional two-step upward adjustment against Ellen based on his special skill as a wetlands consultant. Crimes committed by persons skilled or trained such that they can be expected to understand the law are subject to this adjustment.²⁴⁸ Holding open the prospect that a wetlands consultant could be held to this "special skills" standard, the appellate court nonetheless upheld the district court determination that in this instance, no special skills of Ellen's facilitated the violation. The court therefore refused to add another two-step enhancement.²⁴⁹

In whole, the Ellen prosecution reflects the serious criminal penalties that can be imposed against convicted wetlands violators.

7. Citizen Suits

The CWA's citizen-suit provision establishes two causes of action: § 505(a)(1) authorizes citizen suits against persons alleged to be in violation of a permit, regulation, or the statute;²⁵⁰ § 505(a)(2) authorizes suits against EPA for failure to perform mandatory duties.²⁵¹ Before bringing either suit, plaintiff must give 60 days' notice.²⁵² EPA has regulations addressing the notice requirement.²⁵³ In addition, a citizen suit under § 505(a)(1) is barred if the government is "diligently prosecuting" the same alleged violation.²⁵⁴

A number of legal issues arise in connection with the citizen-suit remedy. As with other parts of the CWA, § 505 is available in cases other than wetlands. This supplement merely addresses some of the issues that have arisen in connection with wetlands litigation. The law governing citizen suits is often made under other federal statutes that also contain citizen-suit provisions; these cases should be consulted by practitioners in the field.

] [ 60-Day Notice Requirement: How Specific? Section 505(b)(1)(A) requires that a citizen give notice of intent to sue at least 60 days prior to filing. Notice must be given to the EPA Administrator, the state in which the violation occurred, and the violator.²⁵⁵ The law is now settled that this requirement is jurisdictional and must be strictly met.²⁵⁶

A number of cases have addressed how specific and detailed the notice of intent to sue must be. Public Interest Research Group of New Jersey v. Hercules, Inc.²⁵⁷ addresses the degree of specificity required in a citizen-suit notice involving nonwetland CWA discharge violations. Plaintiffs provided notice alleging that Hercules committed numerous violations of its effluent discharge limits, raising various limits set in the company's national pollutant discharge elimination system permit. When the suit was filed, plaintiffs included additional violations that allegedly occurred between the time of the notice and the time of suit. The district court, construing the notice requirement strictly, dismissed the alleged violations not specifically identified in the 60-day notice letter.²⁵⁸

On appeal, the Third Circuit decided that "every detail of a violation" need not be included in the notice letter.²⁵⁹ The court articulated a standard of thorough, reasonable notice:

We read the regulation to require just what it says: that the citizen provide enough information to enable the recipient, i.e., Hercules, EPA and/or the State, to identify the specific effluent discharge limitation which has been violated, including the parameter violated, the date of the violation, the outfall at which it occurred, and the person or persons involved.

… Once the discharge violation is noticed, any subsequently discovered monitoring, reporting or recordkeeping violation that is directly related to the discharge violation may be included in the citizen suit.²⁶⁰

In short, the notice letter does not have to include all provisions of law violated as long as it provides the basics. The Third Circuit specifically declined to impose strict limits on the contents of the notice letter. Rather, the court relied on the purpose of the notice requirement to establish the standard for what it must contain:

In deciding whether to initiate an enforcement action, the EPA and the state must be provided with enough information to enable them intelligently to decide whether to do so. At the same time, the alleged violator must be provided with enough information to be able to bring itself into compliance. We will judge the sufficiency of [26 ELR 10356] the plaintiffs' 60-day notice letter in terms of whether it accomplishes these purposes.²⁶¹

Although not a wetlands case, this decision should provide the format for assessment of the sufficiency of the notice letters in all CWA citizen suits.

A few courts have rejected notice letters for gross insufficiency. In Bettis v. Town of Ontario,²⁶² property owners sued the town for damages resulting from stream diversion, and sought to bring CWA citizen-suit claims as well. To satisfy the notice requirement, plaintiffs relied on correspondence they had with the town over the problem. This claimed notice was held insufficient under the CWA. The correspondence asked town officials to investigate the problems, but did not assert CWA violations. Moreover, the letters were not sent to all defendants and were not properly served by certified mail.²⁶³

The claimed notice in Washington Trout v. Scab Rock Feeders²⁶⁴ was similarly held insufficient. The notice letter said that "Irene Salas and others" were going to file suit, but Irene Salas was not a plaintiff in the suit. The notice thus failed to identify the plaintiffs adequately, by not giving the full name, address, and phone number of each person. The court held that a sufficient notice letter was a mandatory, jurisdictional prerequisite to a citizen suit, rejecting plaintiff's argument for liberal construction of the requirement.²⁶⁵

] [ What Kind of Enforcement Bars a Citizen Suit? Section 505(b)(1)(B) provides that no citizen action may be commenced:

if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.²⁶⁶

A number of cases have addressed what kind of federal or state enforcement will bar the citizen action. The basic rule is that the government must bring a formal action to bar citizen enforcement.

A few cases illustrate the kind of governmental action that will not bar the citizen suit (e.g., administrative notices in advance of enforcement).²⁶⁷ Other decisions have addressed governmental action that will bar the citizen suit (e.g., court cases filed by the state or federal government).²⁶⁸ There remains some split in the case law over what kind of nonlawsuit enforcement will constitute "diligent prosecution," and thus bar the citizen suit.²⁶⁹

There are also circumstances in which both the government enforcement action and the citizen suit can proceed. In particular, a prior-filed citizen suit will not be displaced if the government later decides to prosecute.²⁷⁰

] [ Citizen-Suit Remedies. Courts can award penalties in citizen suits. As addressed in the primer, the civil penalties are paid to the U.S. Treasury, not to the citizen plaintiff.²⁷¹ Injunctive relief, including abatement and restoration, is also available.²⁷²

] [ Mandatory-Duty Actions Against the Corps and EPA. It is clear that under § 505(a)(2), EPA can be sued for allegedly failing to perform a mandatory duty.²⁷³ However, there remains a split in the case law concerning whether the Corps is subject to similar suits under this provision. The issue is important to citizens because costs, including attorneys fees, are recoverable under § 505(d).²⁷⁴ And although the Corps may be sued under other statutes, attorneys fees generally are not available as they are under § 505(d).

When plaintiffs sued the Corps under § 505 alleging error in the issuance of a § 404 permit, the court rejected the case as an improper use of the citizen suit. Coeur D'Alene Lake v. Kiebert²⁷⁵ holds that the CWA "does not provide for a citizen suit against the Corps for 'wrongful issuance' of a Section 404 permit."²⁷⁶

[26 ELR 10357]

Courts in the Fourth Circuit, however, continue to follow National Wildlife Federation v. Hanson,²⁷⁷ which allowed a § 505 action to proceed against the Corps. In Environmental Defense Fund v. Tidwell,²⁷⁸ the court held that a citizen may bring suit under § 505 to compel the Corps and EPA to regulate wetland violators. The suit involved a company's landclearing and planting activities that EPA and the Corps had determined wereexempt from the § 404 permit requirement. The court held that "under the Fourth Circuit's expansive interpretation of nondiscretionary duty in Hanson, both federal defendants" (the Corps and EPA) can be sued by citizens for failure to properly assert jurisdiction over wetland activities.²⁷⁹ The court did find, however, that suit could not be brought under both the citizensuit provision and the APA²⁸⁰ to review EPA and Corps actions; the APA claims against the government were therefore dismissed.²⁸¹

Conclusion

The central core of the wetlands regulatory program is the general and individual permit processes in tandem with the enforcement mechanisms addressed above. These regulatory features provide the structure for complying with federal wetlands law. The next and final installment of this supplement covers remedies, including judicial review of Corps and EPA actions and compensation for takings resulting from § 404 permit denials; state program issues; and other federal wetlands programs, including Swampbuster and the Wetlands Reserve.

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, WETLANDS DESKBOOK 3-101 (Environmental Law Institute 1993) [hereinafter WETLANDS DESKBOOK].

3. Federal Water Pollution Control Act, 33 U.S.C. § 1344(e), ELR STAT. FWPCA § 404(e), authorizes issuance of general permits.

4. 33 C.F.R. § 330 (1994).

5. Nationwide general permits appear in the Code of Federal Regulations. Regional or local general permits often are not published. Interested persons must ask their Corps district office about any general permits in effect within that district.

6. See WETLANDS DESKBOOK, supra note 2, at 31.

7. See David E. Ortman, The Corps' Stealth Permit Program, NAT'L WETLANDS NEWSL., Mar./Apr. 1995, at 10; see also NATIONAL ACADEMY OF SCIENCES, NATIONAL RESEARCH COUNCIL, COMMITTEE ON CHARACTERIZATION OF WETLANDS, WETLANDS: CHARACTERISTICS AND BOUNDARIES 166 (1995).

8. 60 Fed. Reg. 38650 (July 27, 1995).

9. Id. at 38662.

10. U.S. EPA and U.S. Department of the Army, Memorandum for the Field, Individual Permit Flexibility for Small Landowners, ELR ADMIN. MAT. I 35611 (Mar. 6, 1995).

11. Id. at 2, ELR ADMIN MAT. I at 35611; see also infra discussion on Individual Permits.

12. 33 U.S.C. § 1344(g), ELR STAT. FWPCA § 404(g); 33 C.F.R. § 325.5 (1994).

13. No. Civ. A. 95-229 (D. Alaska filed June 20, 1995).

14. 805 F. Supp. 234 (D. Vt. 1992).

15. Id. at 240-42.

16. Id. at 240.

17. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

18. 33 C.F.R. § 325.3(a), (d).

19. 16 U.S.C. § 470 et seq.

20. 25 U.S.C. §§ 3001-3013.

21. Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 245 (D. Vt. 1992).

22. 40 F.3d 205, 25 ELR 20594 (7th Cir. 1994).

23. See 33 C.F.R. § 330, App. A, Nationwide 26 (a), (b) (1994).

24. York Center Park District, 40 F.3d at 208, 25 ELR at 20596 (quoting 33 C.F.R. § 330.5(c)(4)).

25. 796 F. Supp. 180 (E.D. Pa. 1992), vacated & remanded on other grounds, 992 F.2d 470, 23 ELR 20836 (3d Cir. 1993).

26. See supra note 23 and accompanying text.

27. New Hanover Township, 796 F. Supp. at 185.

28. Id. at 185-86.

29. 33 U.S.C. § 1341, ELR STAT. FWPCA § 401; see New Hanover Township, 796 F. Supp. at 183-84.

30. New Hanover Township, 992 F.2d at 472-73, 23 ELR at 20837.

31. Id. at 473, 23 ELR at 20837.

32. 33 C.F.R. § 325.1(d)(2) (1994).

33. Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 243, 247-49 (D. Vt. 1992).

34. Id. at 248.

35. Id.

36. 834 F. Supp. 19, 24 ELR 20463 (D. Me. 1993).

37. Id. at 24, 24 ELR at 20464. The court did find, however, that state law conveyed a 30-year constructive easement on owners of structures on lands submerged by navigable waters, and that this was a property right. Id. at 23-24, 24 ELR at 20464-65. Separate from the nationwide permit issue, the court assessed whether federal interference with this state-granted property right could constitute a taking under the Fifth Amendment to the U.S. Constitution. Id. at 26-27, 24 ELR at 20466.

38. Id. at 25-26, 24 ELR at 20465.

39. 801 F. Supp. 185, 22 ELR 21464 (N.D. Ind. 1992).

40. Id. at 191, 22 ELR at 21467.

41. 33 C.F.R. § 330.7(c), (d) (1994).

42. Id. § 330.8.

43. O'Connor, 801 F. Supp. at 191, 22 ELR at 21467.

44. Id.

45. Id. at 192, 22 ELR at 21467.

46. Id. at 193-94, 22 ELR at 21468-69; see also Industrial Highway Corp. v. R.M. Danielson, 796 F. Supp. 121 (D.N.J. 1992) (upholding the Corps' authority to require individual review of fill impacting 2.5 acres of wetlands).

47. 33 C.F.R. § 325.2(e) (1994).

48. Id. § 325.2(e)(1).

49. Id. § 325.2(e)(3).

50. 805 F. Supp. 234 (D. Vt. 1992).

51. 33 C.F.R. § 325.2(e)(4) (1994).

52. See WETLANDS DESKBOOK, supra note 2, at 89-91 for a list of district offices.

53. Regulatory Guidance Letter (RGL) 92-1, Federal Agencies' Roles and Responsibilities, 60 Fed. Reg. 13703 (Mar. 14, 1995).

54. 33 C.F.R. pt. 325 (1994).

55. Id. pt. 320.

56. 40 C.F.R. pt. 230 (1994).

57. WHITE HOUSE OFFICE ON ENVIRONMENTAL POLICY, PROTECTING AMERICA'S WETLANDS: A FAIR, FLEXIBLE AND EFFECTIVE APPROACH (Aug. 24, 1993) [hereinafter PROTECTING AMERICA'S WETLANDS] (available from the ELR Document Service, ELR Order No. AD-114); see also Margaret N. Strand, Recent Developments in Federal Wetlands Law: Part I, 26 ELR 10283, 10285 (June 1996).

58. VIRGINIA S. ALBRECHT & BERNARD N. GOODE, WETLAND REGULATION IN THE REAL WORLD (Feb. 1994) (on file with the law firm of Beveridge & Diamond, P.C., 1350 Eye St. NW, Ste. 700, Washington DC 20005).

59. Id. at 3, 15.

60. Id. at 3, 17.

61. Hearings on H.R. 961 Before the Subcomm. on Water Resources and the Environment of the House Comm. on Transportation and Infrastructure, 104th Cong., 1st Sess. (1995).

62. See, e.g., National Wildlife Federation, Press Release, Wetlands Regulation in the Real World: An Unreal Report (Mar. 1994).

63. U.S. ARMY CORPS OF ENG'RS, REGULATORY BRANCH, SPECIAL STATISTICAL REPORT, SECTION 404 OF THE CLEAN WATER ACT AND WETLANDS 5 (July 1995).

64. Id.

65. Id. at 7.

66. Id. at 1.

67. Among the cases providing a succinct but complete description of the Corps' permit process is Industrial Highway Corp. v. Danielson, 796 F. Supp. 121 (D.N.J. 1992).

68. See 33 C.F.R. § 325.1(b) (1994).

69. Id. § 327.4(b).

70. 988 F.2d 989, 23 ELR 20530 (9th Cir. 1993).

71. Id. at 997, 23 ELR at 20534.

72. Id.; see also O'Connor v. U.S. Army Corps of Eng'rs, 801 F. Supp. 185, 22 ELR 21464 (N.D. Ind. 1992) (applicant not entitled to hearing on permit; notice and comment is enough); Conservation Law Found. v. Federal Highway Admin., 827 F. Supp. 871, 24 ELR 20039 (D.R.I. 1993) (public hearing not required even though requested), aff'd, 24 F.3d 1465, 24 ELR 21196 (1st Cir. 1994).

73. 33 C.F.R. § 320.4(a) (1994).

74. See, e.g., Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 23 ELR 20067 (10th Cir. 1992) (reviewing all considerations and upholding the Corps' decision to issue permit for water-diversion project). Many cases address the full range of issues covered in the Corps' public-interest review. See, e.g., Fox Bay Partners v. U.S. Army Corps of Eng'rs, 831 F. Supp. 605, 24 ELR 20671 (N.D. Ill. 1993) (upholding denial of a permit to build a marina). Fox Bay Partners illustrates the broad public-interest review conducted by the Corps, which looked at secondary impacts on aquatic ecosystem and whether the project would increase resuspension of riverbed sediments, exacerbate traffic on the river, or result in other negative effects on the river. The court held that the Corps properly concluded that the negative effects of the project outweighed its benefits. Id. at 610, 24 ELR at 20673.

75. 40 C.F.R. § 230.10(a) (1994).

76. Memorandum of Agreement Between the [U.S.] Environmental Protection Agency and the [U.S.] Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, ELR ADMIN. MAT. I 35223 (Feb. 6, 1990) [hereinafter Mitigation MOA]. The Mitigation MOA is described in WETLANDS DESKBOOK, supra note 2, at 43-44.

77. PROTECTING AMERICA'S WETLANDS, supra note 57, at 16-17.

78. Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks, 60 Fed. Reg. 58605 (Nov. 28, 1995), ELR ADMIN. MAT. I 35632 [hereinafter Federal Guidance].

79. Mitigation MOA, supra note 76, at 4, ELR ADMIN. MAT. I at 35334-24.

80. Mitigation terms may be developed with natural resource agencies such as the U.S. Fish and Wildlife Service, based on comments on the permit application. Some Corps districts play only an intermediary role between the applicant and the commenters in developing mitigation terms.

81. No. A89-503, 21 ELR 20119 (D. Alaska Oct. 16, 1990), aff'd, 980 F.2d 1320, 23 ELR 20302 (9th Cir. 1992).

82. The "functional equivalent" standard has been applied to EPA actions in a limited setting, excusing EPA from additional NEPA compliance. See, e.g., Merrell v. Thomas, 608 F. Supp. 644, 15 ELR 20532 (D. Or. 1985), aff'd, 807 F.2d 776, 17 ELR 20317 (9th Cir. 1986); Manasota-88, Inc. v. Thomas, 799 F.2d 687, 16 ELR 20994 (11th Cir. 1986). The Corps, by contrast, must specifically comply with NEPA. See infra discussion on NEPA issues.

83. 968 F.2d 1438, 22 ELR 21337 (1st Cir. 1992).

84. See infra notes 125-29 and accompanying text.

85. Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234, 244 (D. Vt. 1992).

86. Federal Guidance, supra note 78, at 58605. This guidance replaces the memorandum to the field included with RGL 93-2, 60 Fed. Reg. 13709 (Mar. 14, 1995); see infra notes 97-100 and accompanying text.

87. PROTECTING AMERICA'S WETLANDS, supra note 57, at 16-17.

88. For a critical analysis of this guidance, see Royal C. Gardner, Federal Wetland Mitigation Banking Guidance: Missed Opportunities, 26 ELR 10075 (Feb. 1996).

89. Federal Guidance, supra note 78, at 58607.

90. Id. at 58608.

91. Id. at 58608-09.

92. This part of the regulatory program has long generated heated disputes. See WETLANDS DESKBOOK, supra note 2, at 41-43; see also Oliver A. Houck, Hard Choices: Analysis of Alternatives Under 404, 60 COLO. L. REV. 703 (1989); James E. Broadway, Practicable Alternatives Under Water Act After Bersani, 41 SYRACUSE L. REV. 813 (1990); William K. McGreevey, Practicable Alternatives, 59 GEO. WASH. L. REV. 379 (1991).

93. 40 C.F.R. § 230.10(a) (1994).

94. Id. § 230.10(a)(3).

95. The only exception applies to small landowners for home building and small businesses, for whom Corps guidance allows the district engineer to presume that there are no practicable alternatives. See supra notes 10-11 and accompanying text.

96. 40 C.F.R. § 230.10(a)(2).

97. Memorandum to the Field, Appropriate Level of Analysis Required for Evaluating Compliance With the Section 404(b)(1) Guidelines Alternatives Requirements, 60 Fed. Reg. 13709 (Mar. 14, 1995); see supra note 86.

98. Id. at 13711.

99. Id.

100. Id.; see also supra notes 10-11, 95 and accompanying text.

101. 33 U.S.C. § 1344(q), ELR STAT. FWPCA § 404(q); see also infra notes 143-46 and accompanying text.

102. 827 F. Supp. 871, 24 ELR 20039 (D.R.I. 1993), aff'd, 24 F.3d 1465, 24 ELR 21196 (1st Cir. 1994).

103. Conservation Law Found., 827 F. Supp. at 886-87, 24 ELR at 20046-47.

104. Id. at 887, 24 ELR at 20047.

105. Id. at 886-87, 24 ELR at 20047.

106. Id. at 887, 24 ELR at 20047.

107. 27 F.3d 1341, 24 ELR 21609 (8th Cir. 1994).

108. Id. at 1346, 24 ELR at 21611.

109. Town of Norfolk v. U.S. Army Corps of Eng'rs, 772 F. Supp. 680, 22 ELR 20282 (D. Mass. 1991), aff'd, 968 F.2d 1438, 22 ELR 21337 (1st Cir. 1992).

110. See id. 968 F.2d at 1450-51, 22 ELR at 21341; see also Strand, supra note 57, at 10291 (discussing groundwater issue).

111. Town of Norfolk, 968 F.2d at 1450-51, 22 ELR at 21341.

112. For an in-depth analysis of NEPA law and its application, see NICHOLAS C. YOST, NEPA DESKBOOK (Environmental Law Institute, 2d ed. 1995).

113. Conservation Law Found. v. Federal Highway Admin., 827 F. Supp. 871, 24 ELR 20039 (D.R.I. 1993), aff'd, 24 F.3d 1465, 24 ELR 21196 (1st Cir. 1994).

114. Id., 827 F. Supp. at 881, 24 ELR at 20044.

115. 960 F.2d 1515, 23 ELR 20067 (10th Cir. 1992).

116. Id. at 1519-20, 23 ELR at 20069.

117. Id. at 1525-29, 23 ELR at 20072-74.

118. This decision seems directly contrary to most cases that require full exposure of environmental consequences for the decisionmaker and the public as an essential part of the NEPA process. Even the Tenth Circuit in Holy Cross Wilderness Fund acknowledged that it was an "unusual case" that deviated from "the typical order of events in NEPA and CWA cases." Id. at 1529, 23 ELR at 20074. Therefore, it is probably a mistake to rely on this case to urge federal decisionmakers to proceed in the absence of fuller analysis and disclosure of environmental impacts.

119. See, e.g., Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D. Vt. 1992) (Corps could rely on FERC's EIS; FERC was lead agency and had reached a FONSI); Town of Norfolk v. U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1447-48, 22 ELR 21337, 21340 (1st Cir. 1992) (Corps' reliance on EPA's EIS in connection with landfill).

120. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 19 ELR 20749 (1989); Enos v. Marsh, 769 F.2d 1363, 15 ELR 20853 (9th Cir. 1985).

121. See Coeur D'Alene Lake v. Kiebert, 790 F. Supp. 998, 22 ELR 21422 (D. Idaho 1992) (supplemental EIS not required for permit for highway project).

122. 58 F.3d 469, 25 ELR 21416 (9th Cir. 1995).

123. Id. at 474, 25 ELR at 21418; see also North Carolina v. City of Virginia Beach, 951 F.2d 596, 22 ELR 20323 (4th Cir. 1991) (holding that FERC can rely on analysis done by the Corps).

124. California Trout, 58 F.3d at 474, 25 ELR at 21418.

125. See 40 C.F.R. § 1502.14(f).

126. See supra notes 84-85 and accompanying text.

127. 811 F. Supp. 524 (D. Idaho 1992), aff'd in part, rev'd in part, 988 F.2d 989, 23 ELR 20530 (9th Cir. 1993).

128. Friends of the Payette, 988 F.2d at 993-94, 23 ELR at 20532.

129. Id. at 993, 23 ELR at 20531.

130. 33 C.F.R. § 320.4 (1994); see supra notes 55, 73-75 and accompanying text.

131. 33 U.S.C. § 1344(m), ELR STAT. FWPCA § 404(m).

132. Id. § 1344(q), ELR STAT. FWPCA § 404(q).

133. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

134. Id. §§ 661-665a, 666-666c.

135. See WETLANDS DESKBOOK, supra note 2, at 38-40.

136. Town of Norfolk v. U.S. Army Corps of Eng'rs, 772 F. Supp. 680, 22 ELR 20282 (D. Mass. 1991), aff'd, 968 F.2d 1438, 22 ELR 21337 (1st Cir. 1992).

137. 40 C.F.R. § 230.10(b)(3) (1994).

138. See Town of Norfolk, 772 F. Supp. at 688-90, 22 ELR at 20286-87.

139. 809 F. Supp. 704, 23 ELR 20615 (D. Minn. 1992).

140. Id. at 712-13, 23 ELR at 20619-20.

141. Id. at 710, 23 ELR at 20618.

142. See also Town of Norfolk, 772 F. Supp. at 691-92, 22 ELR at 20288 (Corps adequately considered views of local governmental opponents to permit).

143. See WETLANDS DESKBOOK, supra note 2, at 38-39.

146. See, e.g., Hartz Mountain Elevation Requests, supra note 145; U.S. Army Corps of Eng'rs, Memorandum Thru [sic] Commander, Ohio River District, for Commander, Pittsburgh District, Request for Section 404(q) Elevation, Meadville Mall (Oct. 3, 1994); U.S. Army Corps of Eng'rs, Memorandum for All Major Subordinate Commands, District Commands, Request for Permit Elevation, Hydrocarbon Exploration and Production General Permit (Dec. 6, 1993); U.S. Army Corps of Eng'rs, Memorandum Thru [sic] Commander, North Atlantic Division, for Commander, Norfolk District, Request for Permit Elevation, Greensprings Plantation (June 28, 1993).

147. 33 C.F.R. § 326.3(e) (1994).

148. Id. § 326(e)(i).

149. Id. § 326.3(e)(1)(iv). In United States v. Telluride Co., 849 F. Supp. 1400, 24 ELR 21458 (D. Colo. 1994), the district court commented unfavorably on the government's practice of holding permit applications in abeyance until enforcement actions were resolved.

150. 33 C.F.R. § 326.3(e)(1)(ii) (1994).

151. 60 Fed. Reg. 37280 (July 19, 1995).

152. See Salt Pond Assocs. v. U.S. Army Corps of Eng'rs, 815 F. Supp. 766, 23 ELR 21026 (D. Del. 1993); Slagle v. United States ex rel. Baldwin, 809 F. Supp. 704, 23 ELR 20615 (D. Minn. 1992); O'Connor v. U.S. Army Corps of Eng'rs, 801 F. Supp. 185, 22 ELR 21464 (N.D. Ind. 1992).

153. 811 F. Supp. 926, 23 ELR 20746 (S.D.N.Y. 1993).

154. Id. at 933, 23 ELR at 20749.

155. Id. at 933-34, 23 ELR at 20750.

156. Id. at 934-35, 23 ELR at 20750-51.

157. 33 U.S.C. § 1344(c), ELR STAT. FWPCA § 404(c).

158. 40 C.F.R. § 231 (1994).

159. WETLANDS DESKBOOK, supra note 2, at 47.

160. 758 F. Supp. 348, 21 ELR 20371 (E.D. Va. 1990), aff'd in part & remanded, 955 F.2d 254, 22 ELR 20566 (4th Cir. 1992), on remand, 23 ELR 20228 (E.D. Va. Aug. 5, 1992), rev'd, 12 F.3d 1330, 24 ELR 20182 (4th Cir. 1993).

161. James City County, 758 F. Supp. at 348, 21 ELR at 20371.

162. Id. at 254, 22 ELR at 20566.

163. Final Determination on Remand of the U.S. Environmental Protection Agency's Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Proposed Ware Creek Water Supply Impoundment, James City County, Virginia (Mar. 27, 1992) (available from the ELR Document Service, ELR Order No. AD-2927).

164. James City County, 23 ELR at 20228.

165. Id. at 1330, 24 ELR at 20182.

166. Id.

167. See U.S. Army Corps of Eng'rs, Memorandum for Acting Assistant Secretary of the Army (Civil Works), Florida Power Corporation 404(q) Elevation Request From the Environmental Protection Agency (Jan. 25, 1994) (available from the ELR Document Service, ELR Order No. AD-2928).

168. See WETLANDS DESKBOOK, supra note 2, ch. 7.

169. 33 U.S.C. § 1319, ELR STAT. FWPCA § 309.

170. Id. § 1365, ELR STAT. FWPCA § 505.

171. See, e.g., United States v. Mills, 817 F. Supp. 1546, 23 ELR 21096 (N.D. Fla. 1993), aff'd sub nom. Mills v. United States, 36 F.3d 1052, 25 ELR 20278 (11th Cir. 1994).

172. See 33 C.F.R. § 326.3 (1994).

173. WETLANDS DESKBOOK, supra note 2, at 51-60.

174. 821 F. Supp. 690, 23 ELR 21182 (N.D. Ga. 1993).

175. Also at issue was whether the statute of limitations applied to both legal (penalties) and equitable (injunction and restoration) remedies. The court held that it applied to both. Id. at 693, 23 ELR at 21183.

176. Id. 821 F. Supp. at 694, 23 ELR at 21184.

177. See also United States v. Reaves, No. 94-925-Civ-J-20, 1996 U.S. Dist. LEXIS 5768 (M.D. Fla. Feb. 22, 1996) (holding that the statute of limitations runs while the fill remains in place).

178. 884 F. Supp. 404, 25 ELR 21578 (D. Colo. 1995).

179. Id. at 408, 25 ELR at 21581.

180. Id. at 409, 25 ELR at 21581.

181. United States v. Telluride Co., 849 F. Supp. 1400, 24 ELR 21458 (D. Colo. 1994).

182. Telluride, 884 F. Supp. at 409, 25 ELR at 21581.

183. 990 F.2d 127, 23 ELR 21022 (4th Cir. 1993).

184. 17 F.3d 1453, 24 ELR 20544 (D.C. Cir. 1994).

185. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

186. Among other issues, the decision resolved the question whether any part of Title 28 of the U.S. Code imposed a statute of limitations on administrative enforcement actions. See 3M Co., 17 F.3d at 1457, 24 ELR at 20546.

187. See id. at 1460, 24 ELR at 20548.

188. Id.

189. Id. at 1461, 24 ELR at 20549.

190. WETLANDS DESKBOOK, supra note 2, at 55; see also Tull v. United States, 481 U.S. 412, 17 ELR 20667 (1987).

191. Sasser v. Administrator, 990 F.2d 127, 23 ELR 21022 (4th Cir. 1993).

192. U.S. CONST. amend. VII.

193. Sasser, 990 F.2d at 130, 23 ELR at 21023.

194. Id.

195. 33 U.S.C. § 1319(c), ELR STAT. FWPCA § 309(c).

196. See Sasser, 990 F.2d at 129, 23 ELR at 21023; see also United States v. Ciampitti, 669 F. Supp. 684, 18 ELR 20419 (D.N.J. 1987); United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166, 17 ELR 20301 (D. Mass. 1986), aff'd, 826 F.2d 1151, 17 ELR 21270 (1st Cir. 1987).

197. 33 U.S.C. § 1319(d), ELR STAT. FWPCA § 309(d).

198. United States v. Van Leuzen, 816 F. Supp. 1171, 1179, 23 ELR 21107, 21112 (S.D. Tex. 1993); see also Atlantic States Legal Found. v. Tyson Foods, Inc., 897 F.2d 1128, 1142, 20 ELR 20788, 20794-95 (11th Cir. 1990).

199. United States v. Westinghouse Bayside Communities, Inc., No. 93-10-CIV-FTM-99 (M.D. Fla. Jan. 14, 1993), reported in 23 ELR 10171 (Mar. 1993).

200. Sasser, 990 F.2d 127, 23 ELR 21022.

201. E.g., Atlantic States Legal Found. v. Universal Tool & Stamping Co., 786 F. Supp. 743, 22 ELR 21052 (N.D. Ind. 1992) (penalty for national pollutant discharge elimination system violation must be high enough so that penalty is not cost of doing business).

202. 667 F. Supp. 1204, 18 ELR 20126 (W.D. Tenn. 1987).

203. Id. at 1211, 18 ELR at 20130.

204. Id. at 1212, 18 ELR at 20130.

205. 28 U.S.C. § 2404.

206. Edwards, 667 F. Supp. at 1214, 18 ELR at 20131.

207. See 28 C.F.R. § 50.7 (1994).

208. United States v. Telluride Co., 849 F. Supp. 1400, 24 ELR 21458 (D. Colo. 1994).

209. Id. at 1403, 24 ELR at 21459.

210. Id.

211. Id. at 1404, 24 ELR at 21459-60.

212. Id. at 1404-06, 24 ELR at 21460-61.

213. Reflecting no small irony, after rejecting the settlement, the same judge ultimately dismissed the enforcement case (the adversary proceeding), finding that the government failed to meet the applicable statute of limitations for filing a complaint. United States v. Telluride Co., 884 F. Supp. 404, 25 ELR 21578 (D. Colo. 1995). The court rejected the government's argument that period of time used in pre-filing negotiation of the settlement should have equitably tolled the statute of limitations. See supra notes 180-82 and accompanying text.

214. See ENVIRONMENTAL CRIMINAL LIABILITY 619 (BNA, Donald Carr, ed. 1996).

215. 816 F. Supp. 1171, 23 ELR 21107 (S.D. Tex. 1993).

216. Id. at 1172-73, 23 ELR at 21108.

217. Id. at 1174, 23 ELR at 21108.

218. Id. at 1181, 23 ELR at 21112.

219. Id. at 1183, 23 ELR at 21114.

220. As reprinted in an appendix to the reported decision, the sign stated:

WETLANDS RESTORATION

Illegal fill material, deposited without required permit from U.S. Army Corps of Engineers by Mr. Marinus Van Leuzen is being removed by the filler at his own expense. In addition, the wetlands shall be revegetated and civil penalties paid. Final restoration of the property, including relocation of the house, shall be funded by Mr. Van Leuzen when he has additional funding.

AS ORDERED BY THE U.S. DISTRICT COURT for the Southern District of Texas, Galveston Division, on behalf of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency.

Id. at 1185, 23 ELR at 21114.

221. United States v. Edwards, 667 F. Supp. 1204, 1215, 18 ELR 20126, 20132 (W.D. Tenn. 1987).

222. E.g., United States v. Pozsgai, 999 F.2d 719, 23 ELR 21012 (3d Cir. 1993) (civil enforcement action).

223. WETLANDS DESKBOOK, supra note 2, at 56.

224. See Orange Env't, Inc. v. County of Orange, 811 F. Supp. 926, 23 ELR 20746 (S.D.N.Y. 1993) (EPA settlement of CWA violations at landfill did not relieve county of duty to obtain permit).

225. The many principles involved in criminal enforcement of environmental laws in general are fully addressed in JOHN F. COONEY ET AL., ENVIRONMENTAL CRIMES DESKBOOK (Environmental Law Institute 1996) [hereinafter ENVIRONMENTAL CRIMES DESKBOOK].

226. See, e.g., Douglas A. Thompson & Thomas G. Yocom, Uncertain Ground: Wetlands Regulation, 96 MASS. INST. OF TECH. ALUMNI ASSOC. TECH. REV. 21 (1993); The Property Rights Foundation of America, Inc., This is America 1994 (1994); The Fairness to Land Owners Committee, Landowners' Most Wanted Lists.

227. See United States v. Pozsgai, 757 F. Supp. 21, 22 ELR 20536 (E.D. Pa. 1991), aff'd in part, rev'd in part, 947 F.2d 938, 22 ELR 20353 (3d Cir. 1991), on remand, 22 ELR 20772 (E.D. Pa. Jan. 23, 1992).

228. See, e.g., William Perry Pendley, War on the West Spreads, WASH. TIMES, July 27, 1995, at F6; Maura Dolan, Wetlands Law Swamped by Rising Tide of Criticism; Environment: Federal Agencies Are Trying to Quell the Furor Over Regulations That Are Called Too Broad, L.A. TIMES, July 5, 1991, pt. A, at 1, col. 1.

229. United States v. Pozsgai, No. 88-450-1, 22 ELR 20772 (E.D. Pa. Jan. 23, 1992).

230. United States v. Pozsgai, 999 F.2d 719, 23 ELR 21012 (3d Cir. 1993).

231. Id. at 725-30, 23 ELR at 21015-17; see also Strand, supra note 57, at 10288 & n.76 (discussing jurisdiction issue).

232. 817 F. Supp. 1546, 23 ELR 21096 (N.D. Fla. 1993), aff'd sub nom. Mills v. United States, 36 F.3d 1052, 25 ELR 20278 (11th Cir. 1994).

233. Mills, 817 F. Supp. at 1549, 23 ELR at 21097.

234. Id. at 1554-55, 23 ELR at 21098-100; see also Strand, supra note 57, at 10287-88 (discussing delineation issue).

235. Mills, 817 F. Supp. at 1551-52, 23 ELR at 21098.

236. Id. at 1554-55, 23 ELR at 21098-100.

237. No. AW-0390 (D. Md. verdict Feb. 29, 1996).

238. See Daily Env't Rep. (BNA), Mar. 4, 1996, at A-2.

239. 846 F. Supp. 892 (D. Guam 1994).

240. Id. at 894. For a more detailed discussion of this case, see Strand, supra note 57, at 10290.

241. See U.S. SENTENCING COMMISSION, GUIDELINES MANUAL (Nov. 1994).

242. 961 F.2d 462, 22 ELR 21282 (4th Cir. 1992); see also WETLANDS DESKBOOK, supra note 2, at 58 (discussing related prosecution of property owner).

243. See ENVIRONMENTAL CRIMES DESKBOOK, supra note 225, at 52.

244. U.S.S.G. § 2Q1.3(a) (1991).

245. Ellen, 961 F.2d at 467-68, 22 ELR at 21284.

246. Id. at 468, 22 ELR at 21284.

247. Id. 22 ELR at 21284.

248. Id. at 469, 22 ELR at 21285.

249. Id.

250. 33 U.S.C. § 1365(a)(1), ELR STAT. FWPCA § 505(a)(1).

251. Id. § 1365(a)(2), ELR STAT. FWPCA § 505(a)(2).

252. Id. § 1365(b), ELR STAT. FWPCA § 505(b).

253. 40 C.F.R. § 135.2 (1994).

254. 33 U.S.C. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B).

255. Id. § 1365(b)(1)(A), ELR STAT. FWPCA § 505(b)(1)(A).

256. See National Envtl. Found. v. ABC Rail Corp., 926 F.2d 1096, 21 ELR 20800 (11th Cir. 1991); see also WETLANDS DESKBOOK, supra note 2, at 58.

257. 830 F. Supp. 1525, 24 ELR 20270 (D.N.J. 1993), aff'd in part, rev'd in part & remanded, 50 F.3d 1239, 25 ELR 20684 (3d Cir. 1995).

258. Public Interest Research Group, 830 F. Supp. at 1534, 24 ELR at 20274.

259. Id. at 1247, 25 ELR at 20688.

260. Id. at 1248, 25 ELR at 20688.

261. Id. at 1249, 25 ELR at 20689.

262. 800 F. Supp. 1113, 23 ELR 21093 (W.D.N.Y. 1992).

263. Id. at 1118, 23 ELR at 21094-95.

264. 823 F. Supp. 819, 24 ELR 20069 (E.D. Wash. 1993).

265. Id. at 820-21, 24 ELR at 20070; see also Canada Community Improvement Soc'y, Inc. v. City of Michigan City, Indiana, 742 F. Supp. 1025, 21 ELR 20294 (N.D. Ind. 1990) (notice to Corps failed to provide notice-in-fact of violations alleged).

266. 33 U.S.C. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B).

267. See, e.g., Public Interest Research Group of N.J. v. New Jersey Expressway Auth., 822 F. Supp. 174, 24 ELR 20329 (D.N.J. 1992) (citizen action not barred by state that did not file in court or formally commence administrative proceedings); Tobyhanna Conservation Ass'n v. Country Place Waste Treatment Co., 734 F. Supp. 667, 20 ELR 21066 (M.D. Pa. 1989) (unsigned letter with no further action did not constitute diligent state enforcement to bar citizen suit); Public Interest Research Group of N.J. v. Elf Atochem N. Am., Inc., 817 F. Supp. 1164, 23 ELR 21225 (D.N.J. 1993) (state order and notice constitutes "commencement" of action, not earlier state inspection report; citizen suit commenced after inspection report was not barred); Washington Pub. Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883, 24 ELR 20231 (9th Cir. 1993) (citizen suit not barred by EPA administrative compliance action; only barred by EPA administrative penalty action); Arkansas Wildlife Fed'n v. Bekaert Corp., 791 F. Supp. 769, 22 ELR 21438 (W.D. Ark. 1992) (same); Hawaii's Thousand Friends, Inc. v. City & County of Honolulu, 806 F. Supp. 225 (D. Haw. 1992) (government action must be in court to preclude citizen suit).

268. See WETLANDS DESKBOOK, supra note 2, at 58-59.

269. See, e.g., Orange Env't, Inc. v. County of Orange, 860 F. Supp. 1003, 25 ELR 20247 (S.D.N.Y. 1994) (state prosecution under state water law was diligent prosecution preventing citizen suit even though violator failed to comply with consent orders); North and S. Rivers Watershed Ass'n v. Town of Scituate, 755 F. Supp. 484, 22 ELR 20436 (D. Mass. 1991) (state administrative order was diligent prosecution), aff'd, 949 F.2d 552, 22 ELR 20437 (1st Cir. 1991); Sierra Club v. Colorado Ref. Co., 852 F. Supp. 1476, 24 ELR 21464 (D. Colo. 1994) ("action" under citizen-suit provision dealing with diligent prosecution does not mean same thing as "lawsuit"); Arkansas Wildlife Fed'n v. ICI Ams., Inc., 842 F. Supp. 1140, 24 ELR 20908 (E.D. Ark. 1993) (state prosecution covered all areas that environmental group sought to cover), aff'd, 29 F.3d 376, 24 ELR 21573 (8th Cir. 1994).

270. See Massachusetts Pub. Interest Research Group v. ICI Ams., Inc., 777 F. Supp. 1032 (D. Mass. 1991) (citizen group filed first, so not barred by later state prosecution on same violations); Public Interest Research Group of N.J. v. Yates Indus., Inc., 757 F. Supp. 438, 21 ELR 20966, on reconsideration, 790 F. Supp. 511, 22 ELR 20343 (D.N.J. 1991) (parallel actions by state and citizen group allowed where group filed notice first).

271. WETLANDS DESKBOOK, supra note 2, at 59; see also Friends of the Earth v. Archer Daniels Midland Co., 780 F. Supp. 95, 22 ELR 21024 (N.D.N.Y. 1992).

272. 33 U.S.C. § 1365(a), ELR STAT. FWPCA § 505(a).

273. Id. § 1365(a)(2), ELR STAT. FWPCA § 505(a)(2).

274. Id. § 1365(d), ELR STAT. FWPCA § 505(d).

275. 790 F. Supp. 998, 22 ELR 21422 (D. Idaho 1992).

276. Id. at 1008, 22 ELR at 21426.

277. 859 F.2d 313, 18 ELR 21509 (4th Cir. 1988).

278. 837 F. Supp. 1344, 24 ELR 20633 (E.D.N.C. 1992).

279. Id. at 1355, 24 ELR at 20638.

280. 5 U.S.C. §§ 704, 706, ELR ADMIN. PROC. §§ 704, 706.

281. Tidwell, 837 F. Supp. at 1356-57, 24 ELR at 20639.

26 ELR 10339 | Environmental Law Reporter | copyright © 1996 | All rights reserved