26 ELR 10399 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Recent Developments in Federal Wetlands Law: Part III

Margaret N. Strand

Editors' Summary: This Article is the last in a three-part 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 addresses judicial review of agency wetlands decisions, including a proposed administrative appeal process for U.S. Army Corps of Engineers' permit decisions and wetlands jurisdictional determinations. Next, the Article examines the takings issue, focusing on specific wetlands decisions and issues, and highlighting relevant takings decisions in other contexts. The Article then discusses state programs, including federal delegation of Clean Water Act (CWA) § 404 program administration and a report on the Alaska Wetlands Initiative, a program designed to address special issues involving Alaskan wetlands. Finally, the Article discusses recent changes to non-CWA wetland programs. In particular, it provides a breakdown of how the 1996 amendments to the Farm Bill have changed programs dealing with agricultural wetlands.

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 10399]

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 third and last in a series intended to supplement the primer, focusing primarily on where wetlands law has changed since its publication. The Article generally follows the structure of, and often refers to, the primer, but can be used on its own.

I. Clean Water Act (CWA)

H. Judicial Review

The right to challenge wetlands decisions by the U.S. Army Corps of Engineers (Corps) or the U.S. Environmental Protection Agency (EPA) remains as it always has been. Judicial review is available in federal district court once the agency makes a final decision.3 One significant change is currently pending, however. In 1995, the Corps proposed regulations to establish administrativeappeals for final permit decisions and final wetlands jurisdictional determinations.4 In addition, two congressional bills, H.R. 9615 and S. 851,6 would also require the Corps to make an administrative appeal available for wetland decisions.7 Aside from these developments, most of the latest decisions concerning judicial review confirm previously established principles.

1. The Corps' Administrative Appeal Process

The administrative appeal process proposed by the Corps would allow appeals of final wetland jurisdictional determinations and permit denials made by the Corps.8 The appeals would be available only to the permit applicant or [26 ELR 10400] property owner. Thus, if someone other than the applicant or property owner wants to challenge a Corps' regulatory decision, federal court is the only option.9

The comment period on the proposed regulations closed near the end of 1995 and it is unclear when final regulations will be published.

2. Preenforcement Review Bar

The case law concerning review of wetlands decisions is still framed by the same principles covered in the primer.10 The government continues to assert that judicial review is not available for Corps decisions that fall short of a final decision on a permit. Recent decisions confirm that position.11 Enforcement orders are also subject to the preenforcement review bar established in the case law.12

Even when the landowner is under criminal investigation, courts will not permit preenforcement interference. For example, in Hartford Associates v. United States,13 the court denied a request to enjoin grand jury investigations and prosecution of alleged wetlands violations. When a defendant challenges CWA jurisdiction over the wetland or the activity, the preenforcement review bar forces the party into a prolonged administrative process before the party's defenses are finally adjudicated.

In Salt Pond Associates v. U.S. Army Corps of Engineers,14 however, the government may have tried to push its efforts to preclude judicial review a little too far. Salt Pond Associates is a complicated case, involving both enforcement efforts and a permit application. After the Corps had partially denied an application for filling that was necessary to develop residential properties, the applicant sought judicial review. The applicant had first sought the Corps' assistance in making a wetlands jurisdictional determination, during which the Corps had noticed certain prior violations. Without admitting that its previous activities constituted violations, the applicant undertook remediation and applied for both an after-the-fact permit and a prospective permit for newly planned activities.15

Relying on the enforcement issues intertwined with the permit proceeding, the government asserted that the preenforcement review bar precluded review of certain parts of the case.16 The court rejected the government's jurisdictional position, finding that none of the principles supporting a ban on preenforcement review applied when a final decision had been made. Even though there were certain overlapping issues in both the enforcement and the permit processes, because the permit process had been completed, judicial review was available.17 The court, however, cautiously provided that it would not impose relief in the permit proceeding that would interfere with the enforcement action. The court flatly refused to enjoin the government from proceeding with the enforcement action,18 thus effectively giving the government the result it sought.

3. Substantive Standards of Review

Recent cases confirm that wetlands actions are subject to review under the arbitrary and capricious standard of the Administrative Procedure Act (APA).19 Judicial review of an EPA veto under CWA § 404(c)20 is also subject to this standard.21 It is a deferential standard of review.22

Review will generally be on the record made in the Corps or EPA proceeding.23 Parties desiring to offer de novo evidence in a challenge to a wetlands decision face an uphill battle to show that they qualify for one of the exceptions to the principle of review on the record.24

Judicial review of Corps' decisions may change when the Corps issues its final regulations for administrative appeals for final permit denials and wetlands jurisdictional determinations.25 The proposed regulations specify that pursuit of an administrative appeal is a prerequisite for judicial review.26 If this provision remains in the final regulations, litigants will have to take care to raise all relevant issues in their administrative appeal, to be sure that they properly exhaust any available remedies. On the other hand, because the proposed appeal process would not be available to third parties seeking review of Corps actions, these parties will have to go directly to court.27

As a final matter, any party seeking judicial review of wetlands actions must, of course, meet the federal court [26 ELR 10401] criteria for standing to sue.28 In Save Ourselves v. U.S. Army Corps of Engineers,29 plaintiffs challenged the Corps' determination that an area planned for a regional airport did not contain CWA jurisdictional wetlands. Applying Lujan v. National Wildlife Federation,30 the court found that plaintiffs failed to allege any particularized injury sufficient to establish standing.31 Save Ourselves may make it very difficult for third parties to challenge Corps' determinations that particular land is not a wetland.

I. Takings

An area of the law related to wetlands that has gained increased attention in recent years is takings. The Fifth Amendment to the U.S. Constitution provides that "private property [shall not] be taken for public use without just compensation."32 Property owners unable to develop wetlands have sought compensation for the "regulatory taking" of their property for the public use of wetlands protection. The case law addressing when regulatory action "takes" private property continues to be developed not only in wetlands cases, but also in cases involving other land use restrictions.33

1. Statutory Compensation Measures

Regulatory takings law now encompasses not only litigation pursuing the constitutional right, but emerging statutory compensation systems as well. For instance, there has been a dramatic increase in legislative proposals in the 104th Congress intended to compensate private-property owners for losses allegedly resulting from federal regulatory actions.34 On March 3, 1995, the House passed H.R. 925, "The Private Property Protection Act of 1995."35 The Senate Judiciary Committee approved S. 605, "The Omnibus Property Rights Act of 1995," in December 1995.36 Each bill allows property owners to seek compensation for suffering a particular percentage loss in fair market value due to governmental action.37 The primary focus of the proposed legislation has been the wetlands program as well as laws protecting endangered species habitat.38

In addition to these general property rights bills, proposals to amend the CWA's wetlands provisions also provide for compensation to private landowners. H.R. 961, passed in 1995, includes a system for compensating owners of wetlands depending on the level of protection afforded to the wetlands under the law.39

2. Nonwetlands Takings Cases

It is important to recognize that because the standards for regulatory takings can be established in nonwetlands cases, property rights and compensation law requires careful review of nonwetlands precedent as well.

The 1992 U.S. Supreme Court decision in Lucas v. South Carolina Coastal Council40 exemplifies how law significant to wetlands can be made in connection with other land use planning laws. Lucas sought compensation when a state coastal protection law prevented him from constructing houses on his beachfront property, which he acquired before the law's enactment. The Court recited that regulatory action that "denies all economically beneficial or productive use of land" constitutes a taking.41 The Court contrasted this "total loss," categorical taking with "diminution" takings, for which courts must still evaluate the degree of economic loss and the nature of the governmental action to determine if it constitutes a taking.42 Lucas redirected the takings analysis to the property interest impacted by the governmental action, requiring courts to assess whether the owner has a property right and expectation to develop the land free from the regulatory burden.43

Another nonwetlands case that may play a role in wetlands actions is Dolan v. City of Tigard.44 In this instance, the Supreme Court addressed conditions a city imposed on a permit authorizing expansion of plaintiff's hardware store and parking lot. As a condition of the permit, the city required Dolan to dedicate land as open space, greenway, and a bike path. Dolan argued that she was being forced to choose between obtaining the permit and obtaining just compensation for what would otherwise be public easements.45 The court held that these "mitigation conditions" resulted in a taking. This was an "exaction" taking, whereby the government exacted a public benefit from a private owner that was disproportionate to the burden the private owner's activities would place on the public. The Court held that "no precise mathematical calculation is required, [26 ELR 10402] but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."46

It remains to be seen whether mitigation conditions in wetlands permits will result in compensable takings based on the proportionality standards articulated in Dolan.

3. Wetlands Takings Sagas

The judicial takings remedy for § 404 decisions may be available more in constitutional theory than in fact. There have been relatively few wetlands takings cases.47 It is expensive and time-consuming to pursue compensation from the federal government for a regulatory taking. Under the Tucker Act, jurisdiction lies exclusively in the U.S. Court of Federal Claims (Claims Court) for cases over $ 10,000; jurisdiction for matters under $ 10,000 is concurrent with the federal district courts.48 As the only defendant is the United States, cases are defended by specialists very familiar with the Claims Court and its precedent. The history of wetlands takings cases counsels that many years will pass between a property owner's original plans and a final determination on compensation.

A few wetlands cases illustrate the persistence necessary for a property owner to pursue a compensation remedy. One such case is Loveladies Harbor, Inc. v. United States.49 In 1982, the Corps had denied plaintiff's application for a permit that was needed to complete a waterfront residential development. After the permit denial was upheld,50 plaintiff prevailed at trial on its takings claim and was awarded $ 2.658 million, plus interest, in compensation.51 The case reached the Court of Appeals for the Federal Circuit after the Supreme Court decided Lucas, which the reviewing court applied in evaluating the lower court decision.52

The treatment of certain facts in Loveladies is very important. Plaintiff's original parcel consisted of 250 acres, 199 of which were developed before enactment of the CWA in 1972. Of the remaining 51 acres, 12.5 were wetlands. The Corps denied plaintiff's permit application to fill the 12.5 acres of wetlands. If the standard for determining when a takings has occurred requires assessment of whether a property has any remaining economic value, defining the property being valued is critical. In Loveladies, the government maintained that the relevant property for the takings analysis was the original 250-acre parcel, or at least the remaining undeveloped 51 acres. Plaintiff asserted that the relevant property was the regulated property—the 12.5 acres of wetlands.

The trial court adopted plaintiff's views and the Federal Circuit did not reverse on appeal. The circuit court did not adopt an absolute standard that the property to be evaluated is solely the regulated property (i.e., the wetlands). Rather, the court encouraged flexibility in deciding what constitutes the property impacted.53 In Loveladies, the regulated 12.5 acres were viewed, on the facts of the case, as the relevant property for the takings analysis.54 The trial court had found that the 12.5 acres had virtually no value if not filled, resulting in the takings award.

Another wetlands takings plaintiff has been litigating for more than 15 years. The most recent decision in Florida Rock Industries, Inc. v. United States55 represents the second time the Federal Circuit has reversed a compensation award to Florida Rock.56 Beginning in 1978, Florida Rock sought to mine wetland areas to extract the underlying limestone. When advised that it would need a § 404 permit, the company applied; the Corps denied the permit application in 1980. The takings litigation commenced thereafter. Initially the Claims Court awarded Florida Rock $ 1.029 million in damages. This award was reinstated when the case was tried on remand after the first appeal.57

When the judgment was again appealed by the United States, the Federal Circuit applied the intervening Lucas decision. The issue was how to determine whether a governmental action deprives the landowner of all economically beneficial use of the property, and, if there is not a complete deprivation, whether a taking has occurred. This is the problem that has vexed regulatory takings law for decades. The Federal Circuit's Florida Rock opinion adds little clarity to the issue, however. Instead, the court describes the balancing test that has traditionally been used in takings cases.58 The case was most recently remanded to determine what economic use, measured by market value, remained in the property and, in light of that, whether a taking occurred.59 Thus, more than 15 years after the permit denial, Florida Rock has yet to see the end of its takings litigation.

The plaintiffs in Plantation Landing Resort, Inc. v. United States60 did not fare as well—or as long—as the Loveladies and Florida Rock plaintiffs. In Plantation Landing, eight years passed between the § 404 permit application and resolution of the takings claim—a relatively "short" period. Developers of the Plantation Landing Resort, planned for Grand Isle, Louisiana, initially filed a § 404 permit application in 1985. After review and negotiations with the Corps, original plans to fill 220 acres were modified to provide for filing of 59 acres. In 1989, after the Corps expressed its intent to issue the permit, EPA requested that the matter [26 ELR 10403] be elevated to headquarters pursuant to § 404(q).61 The Corps' director of civil works issued a memorandum providing guidance to the district engineer to revisit his decision, particularly with respect to practicable alternatives.62 In 1990, on review, the district engineer required different conditions for mitigation of impacts under the permit. The applicant refused to accept the mitigation conditions, and the Corps denied the permit application.

The Claims Court rejected the developer's takings claim.63 The court found that the Corps' action denying the permit was based on plaintiff's failure to agree to appropriate mitigation terms, which the court said did not "(flatly prohibit) plaintiff from developing the land."64 Relying on Lucas, the court concluded that only when development was completely prohibited could a plaintiff seek compensation.65 In essence, the court implied that plaintiff's own unwillingness to pursue a satisfactory mitigation package, not the Corps' action, created plaintiff's problem:

While not unsympathetic to the frustrations of plaintiff, this court cannot find that the regulatory action denied all economically beneficial or productive use of the land. This is especially so where, as here, thegovernment assisted plaintiff in the regulatory process by providing alternative solutions that would advance that plaintiff's proposals for productive use of its land.66

On one level, Plantation Landing simply holds that the mitigation terms did not rise to the level of a taking. However, the case leaves open the issue presented in Dolan (i.e., whether mitigation exactions are compensable). If an applicant disagrees with the Corps' proposed mitigation package, the only remedy other than a takings claim—after not accepting the permit67 —is to seek judicial review of the permit denial. On review, the Corps' mitigation terms are subject to the deferential arbitrary and capricious standard.68 Moreover, in light of Dolan, it is not clear when wetland permit mitigation terms will effect a taking.

4. Wetlands Takings Issues

A number of issues are likely to be central to takings cases involving wetlands. For example, distinguishing between total loss/categorical takings and diminution takings in wetlands cases will remain an important factual and legal issue. As mentioned, under Lucas, a total economic loss is categorically compensable. However, most property with wetlands will retain some market value after the regulatory action. In Loveladies, the remaining $ 12,500 value after the taking did not prevent the court from deciding that it was a "total" economic loss. In Florida Rock, the most recent remand is to determine what economic value remains to decide, in turn, if there is a total loss or otherwise only a diminution taking. Depending on the remaining value of Florida Rock's property, there could be no taking at all.

When a case involves a diminution taking, the balancing of factors in wetlands cases will be the critical inquiry. Current case law does not establish a hierarchy of factors to be considered in deciding whether a taking has occurred. Future cases involving wetlands may begin to emphasize certain factors over others to determine whether a diminution in value results in a taking. Thus, the traditional "case-by-case" analysis may be eclipsed by certain fixed standards when the same resource—wetlands—is involved.

Similarly, there is currently no bright line or percentage of loss that characterizes a diminution taking. The courts have resisted setting standards for how far is "too far" when regulatory actions impose financial burdens on property. Rather than establishing a percentage guidepost in wetlands cases, it is more likely that certain public interest factors, such as clean water, will be emphasized in addressing this kind of regulatory taking.

Another critical issue, as illustrated in Loveladies, is defining the property subject to the taking. If the courts look only at the regulated property (i.e., the wetland), takings will be found in most instances. If the courts look at the value of the entire parcel—wetlands and uplands included—there may be many instances in which no taking is found. Whether a per se rule will be imposed remains to be seen.69

Finally, the vitality of the nuisance exception remains alive in wetlands taking cases. As addressed in Lucas, this exception is based on the notion that "you can't lose what you don't have."70 Because a property owner does not have a right to create or maintain a nuisance on his or her property, regulation preventing or controlling a nuisance is not a taking. It is not clear, however, what set of facts and property law must combine to demonstrate that filling a wetland constitutes a nuisance.

5. Other Takings Issues

There are several jurisprudential matters that often arise in connection with takings litigation. These include ripeness, jurisdiction, and temporary takings.

Ripeness. A litigant claiming a regulatory taking must first make appropriate efforts to obtain permission to use his or her property in the manner that conflicts with the regulatory restriction, and then await final denials by the government before [26 ELR 10404] seeking compensation. Cases are often dismissed because the decision complained of was not final.71

Under the case law, the mere assertion of wetlands jurisdiction over land does not normally constitute a taking, because the property owner may be able to obtain a § 404 permit.72 Whether the governmental action is sufficiently final may be viewed as an issue of fact, however. For example, in City National Bank of Miami v. United States,73 the Claims Court held a takings claim to be ripe even though the Corps had denied a § 404 permit on the basis that the state had not made the requisite water quality certification. The Corps maintained that without the certification, it could not issue a permit, and thus it committed no action that could give rise to a taking. The court found, however, that the permit application had been effectively denied on other grounds and that refiling was clearly futile, even though the denial was without prejudice to refile the application.74

Jurisdiction. Notwithstanding the dictates of the Tucker Act,75 jurisdiction for takings claims is an issue that sometimes arises in connection with § 404 permits. A line of cases addresses the long-standing rule that the Claims Court cannot hear a matter if it is pending in another court.76 On the other side, some federal district courts have opined that they have jurisdiction to review the claim that a permit denial constitutes a compensable taking.77 The dividing line between the jurisdiction of the Claims Court and the federal district courts can be murky.

Whether the Claims Court could retain jurisdiction over a takings claim was raised in Loveladies after the second appeal had been briefed on the merits.78 The jurisdictional arguments were based on intervening case law, in which the Federal Circuit and the Supreme Court construed 28 U.S.C. § 1500's provision that the Claims Court "shall not have jurisdiction of any claim for or in respect of which the plaintiff or his assignee has pending in any other court any suit or process against the United States …."79 Arguably, this provision would deprive the Claims Court of jurisdiction if a plaintiff was pursuing relief in any other court, such as judicial review of a wetlands permit decision.

Although the Loveladies judicial review case was pending when the takings case was also pending, the Federal Circuit held that the Claims Court had jurisdiction over the takings case.80 The issue was framed in terms of what constituted the "claim" in each action. The Federal Circuit's decision rests on the conclusion that the takings action and the action for judicial review are distinct claims that seek distinctly different relief.81

A separate jurisdictional issue involves the authority of federal district courts to address takings matters. In O'Connor v. U.S. Army Corps of Engineers,82 the district court initially refused to dismiss a takings claim that was brought together with an action seeking review of the Corps' permit denial.83 The court, however, subsequently reconsidered its early ruling and reversed itself. Agreeing with the majority of cases, the court noted that injunctive relief was not available to prevent an alleged taking of private property, and that statutory jurisdiction over the claim was in the Claims Court.84 Notwithstanding these conclusions, the district court went on to find that the Corps did not effect a taking when it required the property owner to restore certain parts of the property to their former wetland status. The court found that the Corps' restoration order did not deprive the property owner of all economically viable use of the property, and that the mere diminution in economic value did not suffice for a taking.85 However, the district court's opinions on the merits of the takings issue are not binding on the Claims Court, as exhibited in cases in which the Claims Court later rejected takings claims that district courts had accepted.86

Without addressing the jurisdictional issue, the district court in Donnell v. United States87 assessed whether Corps action impacting a 30-year constructive easement over lands submerged under navigable waters, granted as a matter of state law, could result in a compensable taking. The court embarked on the choppy waters between the scope of the federal navigational servitude and the takings clause.

The Donnells had a wharf that was authorized by a nationwide permit, which the Corps sought to modify by requiring removal of 20 feet of the wharf. Relying on Maine law, the Donnells challenged the Corps, claiming their property right to the submerged land under their structure. Invoking settled authority on the plenary power of the federal government over navigable waters, the court held that although [26 ELR 10405] a state may pass property rights to submerged lands from public to private control, even the state's original authority was subject to federal control over navigation and commerce.88 The court held that "it is clear that no taking has occurred in the instant case because the Donnells' constructive easement over the land underneath their wharf has always been held subject to the federal government's control regarding navigation pursuant to the Commerce Clause."89

Temporary Takings. A difficult question involves the circumstance under which the government must pay for a taking that lasts only temporarily, rather than permanently. If a landowner eventually obtains permission to develop the property, is compensation available for losses incurred during the time the regulation prevented the owner's activity?

Temporary takings can be compensable, but the court will have to find sufficient economic impact during the period of delay to enter an award. In Creppel v. United States,90 the Corps had initially stopped a local reclamation project, requiring plaintiffs to apply for a § 404 permit. Plaintiffs asserted a temporary takings claim for the period between the initial stop-work order and the district court decision remanding the matter to the Corps and allowing consideration of an EPA veto under § 404(c).91 Plaintiffs also presented a permanent takings claim based on the later EPA § 404(c) veto.

The Federal Circuit reviewed the factors to be considered in evaluating temporary takings claims. A compensable, "partial taking" must be distinguished from a noncompensable "mere diminution" in value.92 Temporary takings are evaluated in a manner similar to permanent takings. The court assesses whether the burden of the agency action falls disproportionately on an individual while the benefits accrue to the public, rather than the individual. The reasonable, investment-backed expectations of the property owner are also evaluated. Timing is a significant issue for temporary takings claims: "Property owners cannot sue for a temporary taking until the regulatory process that began it has ended."93 This determines the level of damages, which is essential to the takings evaluation.

Agreeing that the Corps' action could have constituted a temporary taking, the Creppel decision then addresses when the cause of action accrued. The circuit court found different accrual periods for the temporary and permanent takings claims. The temporary taking commenced in 1976, when the Corps issued its stop-work order, and ended in 1984, when the district court reversed the Corps' decision and allowed the project to proceed. The permanent takings claim commenced when EPA issued its veto decision in 1985, even though there were subsequent administrative proceedings at the Corps and EPA.94

The existence of these additional administrative steps required the Federal Circuit to address how a litigant should manage the related administrative challenges and the accrued takings claim. Relying on Loveladies,95 the court admonished that both actions could be filed at the same time: "The claimants, therefore, did not face the Hobson's choice either to challenge the validity of the [Corps' order] or bring a takings claim. They could have brought both suits contemporaneously and had the takings challenge stayed pending resolution of the validity issue."96 Because the applicable statute of limitations was six years and the claimants did not file suit until 1991, the temporary takings claim was held time barred.97

6. The Takings Executive Order (EO)

As described in the primer, EO 12630 requires federal agencies to assess the takings impacts of their regulatory actions.98 EO 12630 also provides that it is intended for internal management of the executive branch, and that it creates no third-party rights or benefits.99 The EO's attempt to shield from judicial review the requirement that agencies prepare takings impact assessments (TIAs) has not been entirely successful, however. In CIT Group/Equipment Financing Inc. v. United States,100 the government was ordered to release its TIA because the court found that the assessment was relevant to plaintiff's takings claim.

J. State Programs

1. Section 404 Delegation

CWA § 404(g)-(k) establishes criteria for delegating § 404 authority to the states.101 This authority has been little used, however. For many years, Michigan was the only state that had been delegated authority to run the § 404 program.102 In late 1993, New Jersey became the second state with a federally approved program.103 Considering that approximately 40 states have been delegated authority to administer the national pollutant discharge elimination system [26 ELR 10406] (NPDES) program under § 402,104 the § 404 delegation record runs a poor second place.

Why states do not seek delegation of § 404 authority has become an issue in the legislative debate. For example, H.R. 961 contains provisions aimed at encouraging state delegation.105

2. Federal Override Authority

One of the issues concerning state-authorized programs is the remaining role for the federal government. For example, EPA's authority to review and veto permits under § 404(c) continues to operate in an authorized state.

In Friends of the Crystal River v. U.S. Environmental Protection Agency,106 the Sixth Circuit affirmed107 that under § 404(j) and state program assumption regulations,108 the Corps assumes permit authority if EPA objects to the issuance of a § 404 permit by an authorized state and the state does not amend a proposed permit in accordance with EPA's comments.109 Furthermore, EPA's subsequent withdrawal of its comments does not change the legal status.110 Thus, Michigan had lost permit-issuing authority when it failed to accommodate EPA's concerns regarding issuance of a § 404 permit to a developer planning a resort golf course.

3. Statewide General Permits

The Corps' regulations authorize issuance of a "programmatic" general permit, which is described as "a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication with that program."111 This authority has been used to support statewide general permits that have an effect similar to delegating § 404 regulation to states.112

For example, there are programmatic general permits for each state within the Corps' New England Division. The permits establish certain activities that, if approved by the state, will be subject to little substantive federal review. Other activities require some federal review, and major activities require a separate federal permit.113 The federal government retains its legal authority to issue § 404 permits, but agrees in advance that the Corps will, in fact, accept state decisions.

The use of programmatic general permits as a substitute for delegation of the § 404 program is controversial.114 Opponents object that general permits should not be used to exempt large categories of wetlands or wetland activities from full § 404 review. Critics also claim that the Corps joins wetlands and actions that are not minor or similar in nature under state programmatic general permits. On the other hand, the general permit vehicle is more attractive to states than is delegation, and thus can be more effective. A programmatic general permit can reduce the administrative burden of wetlands regulation to both the regulators and the regulated community. It remains to be seen whether the trend toward state programmatic general permits will be curtailed by policy changes or litigation.

4. Alaska Wetlands Initiative

One of the provisions of the Clinton Administration's wetlands program was a promise to consider the special issues of Alaskan wetlands. To implement this promise, EPA, the Corps, the U.S. Fish and Wildlife Service (FWS), and the National Marine Fisheries Service assessed, with community input, wetlands issues in Alaska. The four agencies then issued a report with recommendations on the Alaska Wetlands Initiative,115 along with guidance addressing application of specific aspects of the § 404 program in Alaska.116

Alaskan wetlands present some special issues. Alaska's estimated 175 million acres of wetlands cover approximately 43 percent of the state's surface areas. In contrast, the rest of the United States has roughly 103 million acres of wetlands, which constitute only about 5 percent of its surface area.117 Certain standards for mitigation that can be applied in the contiguous states, such as sequencing and off-site compensatory mitigation, cannot be applied reasonably in Alaska because of limited construction areas. Other physical circumstances differ as well. For example, Alaska has permafrost wetlands, where wetland conditions exist during warm periods because the frozen subsurface creates an impermeable barrier to downward water flow. In such areas, alternatives and mitigation sites can be difficult to identify.

The Alaska Wetlands Initiative includes a number of recommendations for action. The program encourages development of state general permits, tailored to special Alaskan issues.118 Public outreach and education are emphasized, along with advance identification of wetlands.119 Flexibility in applying regulations for mitigation is also advocated.120

[26 ELR 10407]

Included with the report on the Alaska Wetlands Initiative is guidance on how to apply mitigation requirements in Alaska.121 The guidance suggests that standard mitigation requirements, such as avoidance and restoration, may not be practicable in Alaskan watersheds that have a high proportion of wetlands, and encourages flexibility in those circumstances.122 The Clinton Administration was careful not to exempt Alaska from any regulatory requirements. Rather, the guidance draws support from the flexibility inherent in the regulations, and identifies situations in which that flexibility should be applied.

Additional guidance addresses how the "no net loss" policy will apply in Alaska.123 The policy establishes an expectation that permitted wetlands losses will be mitigated. In Alaska, however, it is often impractical to mitigate due to the state's geography. The guidance clarifies that the overall goal need not be achieved "on a permit-by-permit basis."124 It also repeats the Administration's position that no net loss may be attained through nonregulatory as well as regulatory means. The guidance suggests that Alaskan situations might not be suitable to a no-net-loss policy, and that flexibility is acceptable in such situations.125

Together, the two guidance documents and the report on the Alaska Wetlands Initiative send a message that less demanding standards can be applied to individual permits within the state.

II. Other Wetland Programs: Agricultural Programs

A. Food Security Act (FSA)

As described in the primer,126 wetlands are subject to regulation under the conservation programs of the FSA.127 The major wetlands programs under the FSA are swampbuster and the wetlands reserve. Swampbuster protects wetlands through disincentives for destruction, providing that conversion of wetlands to cropland will result in denial of eligibility for certain agricultural benefits for the converted cropland.128 The wetlands reserve protects through incentives: landowners will be paid for the preservation of wetlands enrolled in the reserve under a 10-year contract.129 Combined, the programs offer farmers choices to preserve wetlands, rather than convert them into productive use.

These programs have seen some changes since the primer. In 1996, Congress amended the FSA, including the conservation programs. The basic structure of swampbuster and the wetlands reserve remain intact, but a number of changes were made. There have also been administrative changes relating to agricultural wetlands. Differences between the FSA, which applies exclusively to agricultural lands, and the CWA, which applies to all wetlands, have created some confusion. Implementing its 1993 wetlands policy, the Clinton Administration undertook certain steps to narrow the differences between the two programs.

1. 1996 FSA Amendments

The 1996 FSA Amendments130 change some of the wetlands protection features. Federal loans and payments are the only benefits that will be withheld under swampbuster for farmers who plant agricultural commodity crops in converted wetlands.131 Under prior law, other benefits such as crop insurance could be withheld. A good-faith exemption allows waiver of swampbuster sanctions when the Secretary of the U.S. Department of Agriculture (USDA) determines that the person acted in good faith and without intent to violate the FSA.132

Wetland delineations on farmland must be made by the USDA, which also must provide an opportunity to appeal the delineation before it becomes final.133 The delineation must be made on a map and is valid as long as the farmland is in agricultural production, unless the farmer seeks a new delineation.134 Exemptions from wetland delineation include prior converted cropland,135 ditches and farm ponds dug in uplands, and other exemptions similar to the 1990 FSA.136 The 1996 amendments also provide a statutory addition to the definition of "agricultural lands" as that term is used in the 1994 memorandum of agreement (MOA) concerning wetland delineation on agricultural lands.137 The MOA covers cropland; the amendments add pastures and livestock land as well as tree farms.138

[26 ELR 10408]

New wetland conversions are allowed for crops on: wetlands dried by drought; wetlands where conversion began before December 23, 1985, but where wetland conditions were later reestablished based on lack of maintenance of drainage works; wetlands restored through voluntary actions; and for other circumstances.139 The FSA is also amended to allow categorical minimal effects exemptions on a regional basis,140 and to apply to a conversion that is mitigated, with a presumption that one-for-one acreage mitigation will, in most cases, be sufficient.141

Regarding amendments to the wetland reserve, the total acres enrolled shall not exceed 975,000.142 Not more than 25 percent of the cropland in any county can be enrolled in the wetland reserve or the conservation reserve program.143 The expenditures for the reserve from 1996 through 2002 are mandatory and are to be funded by the Commodity Credit Corporation.144

The 1996 amendments also establish a nonprofit National Natural Resource Conservation Foundation for charitable, educational, and scientific purposes.145 It is intended, among other things, to promote leadership and support for the "conservation challenges," including wetlands, on farmland. Two other programs relate to wetlands as well. A flood risk reduction program, which is available from 1996 through 2002, will enable enrollment of frequently flooded land.146 In exchange for payments, the participating farmer must forgo planting and insurance or disaster claims.147 The wildlife habitat incentives program authorizes cost-share payments to farmers who develop and implement wildlife management plans.148 Wetland wildlife management measures are among the programs eligible.

The 1996 amendments also have made the enforcement side of the FSA conservation provisions more "user-friendly." The amendments require the federal government to advise farmers of any violations and provide technical assistance to correct the problem.149 The farmer has up to a year to come into compliance before enforcement action may be taken.150

In sum, the wetland protection features of the FSA remain in effect, but with some meaningful changes. The cases and administrative policies addressed below all arose under the pre-1996 Act. It remains to be seen what additional changes may occur under the amended FSA.

2. Prior Converted Cropland

Swampbuster provides a "grandfather" exemption for prior converted cropland.151 Farmers are entitled to obtain a determination from the Agricultural Stabilization and Conservation Service that their conversions of wetlands to agriculture either began before December 23, 1985 ("prior commenced" determination) or were completed before December 23, 1985 ("prior converted" determination) and, therefore, retain eligibility for agricultural benefits.152 Although the FSA authorizes farming on such wetlands, depending on the physical traits of the parcel, the CWA might prohibit it.

In 1990, the Corps issued Regulatory Guidance Letter (RGL) 90-7, which provided that prior converted croplands were not usually wetlands "under normal circumstances."153 In 1993, the Corps modified its regulations to exempt from the definition of "waters of the United States" prior converted cropland as defined in the FSA; this regulatory change codified RGL 90-7.154 The rationale was to provide consistency in the federal government's administration of programs. The Corps maintains that prior converted croplands are no longer wetlands "under normal circumstances" as provided in the Corps' regulations, and thus can be categorically deleted from the definition of "waters of the United States."155

3. Wetland Delineations on Agricultural Lands

In another move to eliminate inconsistency among agency programs, the Clinton Administration consolidated wetland delineation on agricultural lands in the USDA. Under the 1994 MOA, the Natural Resource Conservation Service (NRCS) (formerly the Soil Conservation Service) will conduct wetland delineations on agricultural lands for both FSA and CWA purposes.156 The NRCS' delineations will be accepted by the Corps, EPA, and the FWS for CWA purposes as well. As noted above,157 the 1996 FSA amendments added cattle rangeland and tree farms to the agricultural areas covered by this MOA.

Wetlands that are subject to the FSA remain eligible for regulatory treatment different from that applicable to wetlands subject only to the CWA. Although the Clinton Administration has made efforts to narrow the discrepancies, the FSA and the CWA approach wetlands in fundamentally different ways. The CWA establishes flat prohibitions, while the FSA strikes a balance between farming and wetlands protection.

III. Executive Orders

There are instances, identified in the primer, in which parties will claim that activities in wetlands or floodplains violate executive orders.158 EO 11990, the "wetlands EO," requires federal agencies to "minimize destruction, loss or degradation [26 ELR 10409] of wetlands."159 EO 11988, the "floodplains EO," requires federal agencies to evaluate alternatives to placing projects within floodplains.160 Generally, attempts to enforce these EOs arise in cases involving claims under the CWA or the National Environmental Policy Act.161

A. EO 11990: The Wetlands EO

In National Wildlife Federation v. Babbitt,162 plaintiffs invoked EO 11990, claiming that the U.S. Department of the Interior (DOI) had improperly failed to consider wetlands as a resource that would make an area unsuitable for coal mining. Under the Surface Mining Control and Reclamation Act,163 the DOI developed land use plans for federal lands, designating those lands that are suitable for coal mining. The federal regulations establish screening standards, known as "unsuitability criteria."164 Plaintiffs challenged these regulations, asserting that they should have included wetlands among the unsuitability criteria.

The court determined that agency action alleged to violate an EO was subject to review under the APA, as long as the EO had the force and effect of law.165 The court accorded EO 11990 the force of law because it "imposes a non-discretionary duty on the heads of agencies" to minimize wetland destruction.166 Although agencies have flexibility in determining what to do, the court held that:

the agency head is not free to do nothing to minimize harm to wetlands; nor free to permit damage to wetlands without having taken at least those mitigatory actions that are "capable of attainment within relevant, existing constraints"; nor free to permit damage to wetlands without making a finding that "all practicable measures to mitigate harm" have in fact been taken.167

Thus, the court construed EO 11990 to impose substantive duties, subject to review under the APA.

Reviewing the entire record, the court found that the DOI acted arbitrarily by not adopting a wetlands unsuitability criterion:

[The DOI] offered no explanation as to why the wetlands unsuitability criterion should be rejected. Given that the available evidence in the record suggested that a wetlands unsuitability criterion offered substantial benefits and few significant disadvantages, the absence of discussion suggests that the evidence was not properly considered.168

The court thus remanded the matterto the DOI.

B. EO 11988: The Floodplains EO

In dismissing a claim under the floodplains EO, the Seventh Circuit in Village of Elk Grove Village v. Evans169 engaged in lengthy analyses of mootness and the EO's substance. The court reviewed claims that the Corps had authorized construction of a radio tower in a floodplain without considering EO 11988. The Corps had found that the tower was authorized under a nationwide permit and conducted no further individualized review. After exploring numerous ways in which the case could be alive, the court found the matter moot because the project applicant had withdrawn its application.170

Perhaps the greatest floodplain and wetlands events to arise in recent years were the floods of 1993 in the greater Mississippi River watershed. Destruction of natural flood control, including wetlands, accounted for much of the flood damage, along with erection—and failure—of flood-control structures along the river banks.171 The vast damage to property built in the river's floodplain has caused a rethinking of U.S. floodplain policy. For example, CWA amendments introduced in Congress increasingly emphasize watershed planning for pollution protection.172 Watershed planning is also a vehicle for evaluating wetlands functions within a region.

IV. Wetland Programs of Other Federal Agencies

The FWS administers certain wetland programs.173 Other federal agencies, such as the Farmers Home Administration (FmHA), may rely on the expertise of the FWS, the Corps, or EPA in administering programs that involve wetlands. A case involving a conservation easement illustrates this relationship.

Harris v. United States174 involved a challenge to a wetland delineation establishing a conservation easement on property the FmHA acquired through foreclosure. In 1987, the FmHA foreclosed on property Harris owned. While the property was in federal inventory, the FWS found that 1,004 of the 1,900 acres were wetlands and imposed conservation easements on the wetlands. In 1989, Harris repurchased the property under Agricultural Credit Act lease-back/buy-back rights.175 With the wetlands easements, Harris maintained that the property could not be farmed and that he could not generate sufficient income to pay his loans. In an earlier decision, the court upheld the government's authority to retain the wetland easements even after repurchase.176

Harris then attacked as arbitrary and capricious the wetland delineation, which the FWS had conducted at the FmHA's request. Without citation, the Harris opinion states [26 ELR 10410] that the FWS delineates wetlands based on evidence of at least one, but not necessarily all three, parameters:177

It is the policy of FWS in delineating wetlands that a finding of a positive indicator in one or more of the three parameters—soils, hydrology, and vegetation—would satisfy the agency that the property in question was properly wetlands. Thus, for instance, were the biologist making the delineation able through visual observation of the property to identify the prevalent vegetation and additionally found further evidence of wetland hydrology, the presence of hydric soil could be assumed.178

Such an approach deviates from the 1987 Corps Manual,179 which establishes only narrow exceptions to the requirement that all three parameters be present for delineating wetlands. Notwithstanding the above-quoted text, the opinion states that both sides agreed that the three-parameter approach was the proper methodology for wetland delineation.180

The court in Harris upheld the FWS' delineation,181 even though the FWS had not indicated in the record what manuals or standards it was applying. The case is notable as a reminder of the role that agencies other than the Corps and EPA may play in wetlands delineation and protection.

Conclusion

This Article tackled the nonregulatory issues in federal wetlands law: remedies, such as judicial review or takings claims; state program authority under the CWA; and wetlands programs under other laws, such as the farm programs. With the two prior articles in this series, this Article completes the update of federal wetlands law. The update illustrates the point raised at the start of the series and in the Wetlands Deskbook— that federal wetlands law remains a conglomeration of laws, regulations, and policies patched together.

Using an analogy to medicine, ecologists describe wetlands as the "lungs" of their ecosystems, filtering sediments and pollutants to protect the "body" —the surface water systems. Federal wetlands law has grown to its current form without such a complete and functional perspective toward wetlands. Instead, land development and agricultural uses have been conditioned, to varying degrees, to meet federal wetlands protection standards. The regulatory program has evolved over time, in response to changing policies. Clear legislative direction has been lacking.

Despite its haphazard evolution, the current federal wetlands programs operate well in the majority of cases. Charged with the difficult task of balancing wetlands protection and property development, the Corps' district offices handle most wetland activities without controversy. Federal wetlands law can be confusing to the uninitiated, but it is not beyond comprehension. Until clear statutory direction arrives, the Wetlands Deskbook and this supplement may provide some assistance.

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

2. MARGARET N. STRAND, Federal Wetlands Law, in WETLANDS DESKBOOK 3-101 (Environmental Law Institute 1993) [hereinafter WETLANDS DESKBOOK].

3. Jurisdiction is usually based on 28 U.S.C. § 1331. Substantive standards for review are found in the Administrative Procedure Act (APA), 5 U.S.C. § 706; see infra notes 19-24 and accompanying text.

4. 60 Fed. Reg. 37280 (July 19, 1995).

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

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

7. See H.R. 961, supra note 5, § 803, amending 33 U.S.C. § 1344(i), ELR STAT. FWPCA § 404(i).

8. 60 Fed. Reg. at 37280.

9. The Corps considered, but rejected, making administrative appeals available to interested third parties. See id. at 37281, 37284-85. Third-party involvement in the permit process is preserved, however, "if the Division Engineer's determination [on appeal] is to refer the file back to the District Engineer for re-evaluation." Id. at 37284.

10. See WETLANDS DESKBOOK, supra note 2, at 61.

11. E.g., Laguna Gatuna, Inc. v. Browner, 58 F.3d 564, 25 ELR 21192 (10th Cir. 1995) (no review of EPA's assertion of jurisdiction over isolated sinkhole); Rueth v. U.S. Environmental Protection Agency, 13 F.3d 227, 24 ELR 20214 (7th Cir. 1993) (no review of government's wetlands determination); Child v. United States, 851 F. Supp. 1527, 24 ELR 21192 (D. Utah 1994) (no review of Corps' assertion of wetland jurisdiction and order to remove fill on .04 acres of wetland on 400-acre property).

12. See, e.g., Howell v. U.S. Army Corps of Eng'rs, 794 F. Supp. 1072 (D.N.M. 1992) (no review of cease and desist letter); Banks v. Page, 768 F. Supp. 809 (S.D. Fla. 1991) (no review of cease and desist order; not final agency action); Board of Managers v. Bornhoft, 812 F. Supp. 1012, 23 ELR 20782 (D.N.D. 1993) (no review of cease and desist letters); Route 26 Land Dev. Ass'n v. United States, 753 F. Supp. 532, 21 ELR 21199 (D. Del. 1990), aff'd, 961 F.2d 1568 (3d Cir. 1992) (no review of cease and desist order).

13. 792 F. Supp. 358, 22 ELR 20881 (D.N.J. 1992), appeal dismissed, 981 F.2d 1247 (3d Cir. 1992).

14. 815 F. Supp. 766, 23 ELR 21026 (D. Del. 1993).

15. Id. at 769, 23 ELR at 21028.

16. Id. at 771, 23 ELR at 21029.

17. Id. at 773, 23 ELR at 21029-30.

18. Id. at 777, 23 ELR at 21032.

19. 5 U.S.C. § 706; see also Audubon Soc'y of Cent. Ark. v. Dailey, 977 F.2d 428, 23 ELR 20271 (8th Cir. 1992) (arbitrary and capricious standard applicable to Corps' finding of no significant impact for bridge project).

20. Federal Water Pollution Control Act, 33 U.S.C. § 1344(c), ELR STAT. FWPCA § 404(c).

21. James City County v. U.S. Environmental Protection Agency, 12 F.3d 1330, 24 ELR 20182 (4th Cir. 1993).

22. Conservation Law Found. v. Federal Highway Admin., 24 F.3d 1465, 24 ELR 21196 (1st Cir. 1994).

23. See, e.g., Town of Norfolk v. U.S. Army Corps of Eng'rs, No. 91-10771-MA, 22 ELR 20105 (D. Mass. June 19, 1991) (absent clear suggestion of bad faith, review of § 404 permit in relation to construction of Boston Harbor cleanup facilities limited to record).

24. See WETLANDS DESKBOOK, supra note 2, at 62.

25. See supra notes 4, 8-9 and accompanying text.

26. 60 Fed. Reg. 37280, 37285 (July 19, 1995).

27. See supra note 9 and accompanying text.

28. These criteria require a plaintiff to demonstrate actual or threatened injury to an interest protected by the statute. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 20 ELR 20962 (1990). A complete review of standing jurisprudence is beyond the scope of this Article. It is important that litigants carefully assess and plead their standing to bring a suit for judicial review of agency wetlands actions.

29. 958 F.2d 659, 22 ELR 21035 (5th Cir. 1992).

30. 497 U.S. 871, 20 ELR 20962 (1990).

31. Save Ourselves, 958 F.2d at 662, 22 ELR at 21036.

32. U.S. CONST. amend. V, cl. 4.

33. Because regulatory takings jurisprudence is not confined to wetlands programs, a complete presentation of takings law is beyond the scope of this Article. For a review of the historical development of regulatory takings law, see Hendler v. United States, 952 F.2d 1364, 22 ELR 20646 (Fed. Cir. 1991); see also James M. McElfish Jr., Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, 24 ELR 10231 (May 1994) (addressing the historic underpinnings of takings law).

34. Several authors have summarized and analyzed the many property rights bills introduced in the 104th Congress. See, e.g., David Coursen, Property Rights Legislation: A Survey of Federal and State Assessment and Compensation Measures, 26 ELR 10239 (May 1996); John Pendergrass et al., The Environment and the Contract, 25 ELR 10350 (July 1995); see also Margaret N. Strand, Recent Developments in Federal Wetlands Law: Part I, 26 ELR 10283, 10284-85 (June 1996).

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

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

37. The House bill uses a 20 percent diminution level, while the Senate bill uses a 33 percent diminution level. H.R. 925, supra note 35, § 3(a); S. 605, supra note 36, § 204(a)(2)(D).

38. See H.R. 925, supra note 35, § 10(5)(A),(B); S. 605, supra note 36, § 102(5).

39. H.R. 961, supra note 5, § 803, amending 33 U.S.C. § 1344(c)(3), (d), ELR STAT. FWPCA § 404(c)(3), (d).

40. 112 S. Ct. 2886, 22 ELR 21104 (1992). The Lucas decision is discussed in more detail in WETLANDS DESKBOOK, supra note 2, at 66-67.

41. Lucas, 112 S. Ct. at 2893, 22 ELR at 21107.

42. Id. n.7, 22 ELR at 21107-08 n.7.

43. Id. at 2899-902, 22 ELR at 21110-11.

44. 114 S. Ct. 2309, 24 ELR 21083 (1994).

45. Id. at 2319, 24 ELR at 21085.

46. Id. at 2319-20, 24 ELR at 21087.

47. See WETLANDS DESKBOOK, supra note 2, at 65.

48. 28 U.S.C. §§ 1346, 1491. The Court of Federal Claims was formerly called the U.S. Claims Court.

49. 28 F.3d 1171, 24 ELR 21072 (Fed. Cir. 1994).

50. Plaintiff brought an APA challenge to the permit decision at the same time it initially filed in the Claims Court. The Corps' permit denial was upheld in Loveladies Harbor, Inc. v. Baldwin, No. 82- 1948 (D.N.J. Apr. 3, 1984), aff'd, 751 F.2d 376

, 15 ELR 20088 (3d Cir. 1984). The Claims Court action was held in abeyance during the judicial review case.

51. Loveladies, 21 Cl. Ct. 153, 20 ELR 21207 (1990).

52. An intervening opinion denying cross motions for summary judgment established the governing law for the trial. See id., 15 Cl. Ct. 381, 19 ELR 20092 (1988).

53. Id., 28 F.3d at 1180-81, 24 ELR at 21076-77.

54. Id. at 1181, 24 ELR at 21077.

55. 18 F.3d 1560, 24 ELR 21036 (Fed. Cir. 1994).

56. See Florida Rock Indus., Inc. v. United States, 8 Cl. Ct. 160, 15 ELR 20626 (1985), aff'd in part, vacated in part & remanded, 791 F.2d 893, 16 ELR 20671 (Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987), on remand, 21 Cl. Ct. 161, 20 ELR 21201 (1990). The earlier stages of this case are described in WETLANDS DESKBOOK, supra note 2, at 66.

57. See Florida Rock, 21 Cl. Ct. 161, 20 ELR 21201 (1990).

58. See id., 18 F.3d at 1570-72, 24 ELR at 21041-42.

59. Id. at 1565, 24 ELR at 21038.

60. 30 Fed. Cl. 63, 24 ELR 20185 (1993), aff'd without op., 39 F.3d 1197 (Fed. Cir. 1994), cert. denied, 115 S. Ct. 1822 (1995).

61. 33 U.S.C. § 1344(q), ELR STAT. FWPCA § 404(q). Elevation issues are discussed in Margaret N. Strand, Recent Developments in Federal Wetlands Law: Part II, 26 ELR 10339, 10347-48 (July 1996).

62. See Memorandum Thru [sic] Commander, U.S. Army Engineer Division, Lower Mississippi Valley, for Commander, U.S. Army Engineer District, New Orleans, Permit Elevation, Plantation Landing Resort, Inc. (May 9, 1989), reprinted in WETLANDS DESKBOOK, supra note 2, at 372-85.

63. Plantation Landing, 30 Fed. Cl. at 68, 24 ELR at 20188.

64. Id. at 69, 24 ELR at 20188.

65. Id.

66. Id.

67. The applicant must either accept a § 404 permit and agree to all of its terms or not accept it. See 33 C.F.R. pt. 325, app. A, para. 6. The applicant does not have a choice to accept the permit while challenging some of its terms.

68. See supra notes 19-22 and accompanying text.

69. The Claims Court recently found that the relevant property was the entire parcel, not just the portion impacted by the governmental action. See Broadwater Farms Joint Venture v. United States, No. 94-1041 L (Fed. Cl. Mar. 27, 1996), slip. op. at 13; but cf. Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1181, 24 ELR 21072, 21077 (Fed. Cir. 1994) (viewing only the regulated portion as the relevant property for takings purposes).

70. See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2901-02, 22 ELR 21104, 21109-10 (1992).

71. See, e.g., Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994) (wetlands taking case dismissed as not ripe because state compensation remedies not pursued after county denied variance).

72. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985) (landowner cannot claim a taking based on a wetlands determination alone). H.R. 961 would overrule this precedent and allow compensation based on jurisdictional delineations, eliminating the prerequisite of applying for a permit. H.R. 961, supra note 5, § 803, amending 33 U.S.C. § 1344(c), (d), ELR STAT. FWPCA § 404(c), (d).

73. 30 Fed. Cl. 715 (1994).

74. Id. at 720; see also Broadwater Farms Joint Venture v. United States, No. 94-1041 L (Fed. Cl. Mar. 27, 1996), slip op. at 5-10 (holding ripe, on the particular facts, a wetlands determination in a cease and desist letter because it would be futile for the claimant to apply for a permit).

75. See supra note 46 and accompanying text.

76. See, e.g., UNF Indus., Inc. v. United States, 962 F.2d 1013 (Fed. Cir.), aff'd sub nom. Keene Corp. v. United States, 113 S. Ct. 373 (1992).

77. See, e.g., Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726, 19 ELR 20672 (E.D. Va. 1988) (opining that permit denial constituted taking), aff'd, 885 F.2d 866, 20 ELR 20008 (4th Cir. 1989).

78. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 24 ELR 20938 (Fed. Cir. 1994).

79. UNF Indus., 962 F.2d at 1013.

80. Loveladies, 27 F.3d at 1551-54, 24 ELR at 20940-41.

81. Id. at 1549, 24 ELR at 20939; see also Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994) (challenge to flood-control project raising both takings and judicial review claims).

82. 801 F. Supp. 185, 22 ELR 21464 (N.D. Ind. 1992).

83. See id. at 197, 22 ELR at 21470.

84. Id.; see also Slagle v. United States ex rel. Baldwin, 809 F. Supp. 704, 23 ELR 20615 (D. Minn. 1992) (dismissing takings claim brought with challenge to permit denial).

85. O'Connor, 801 F. Supp. at 198-99, 22 ELR at 21470-71.

86. Compare Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726, 19 ELR 20672 (E.D. Va. 1988) (setting aside Corps' decision and opining that a taking occurred), aff'd, 885 F.2d 866, 20 ELR 20008 (4th Cir. 1989) with Tabb Lakes, Ltd. v. United States, 26 Cl. Ct. 1334, 23 ELR 20104 (1992) (rejecting prior district court viewpoint and denying takings claim), aff'd, 10 F.3d 796, 24 ELR 20169 (Fed. Cir. 1993); compare also 1902 Atl., Ltd. v. Hudson, 574 F. Supp. 1381, 14 ELR 20023 (E.D. Va. 1983) (opining that permit denial was a taking) with 1902 Atl. Ltd. v. United States, 26 Cl. Ct. 575, 23 ELR 21202 (1992) (rejecting takings claim).

87. 834 F. Supp. 19, 24 ELR 20463 (D. Me. 1993).

88. Id. at 26, 24 ELR at 20466.

89. Id. at 27, 24 ELR at 20466.

90. 30 Fed. Cl. 323 (1994), aff'd, 41 F.3d 627 (Fed. Cir. 1994).

91. Creppel, 41 F.3d at 630.

92. Id., 41 F.3d at 631. A partial taking is a permanent taking that impacts less than the full fee title of a property, such as an easement.

93. Id. at 632.

94. Id. at 631-32.

95. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 24 ELR 20938 (Fed. Cir. 1994) (en banc).

96. Creppel, 41 F.3d at 633.

97. Id. The Federal Circuit reversed the Claims Court with respect to the permanent takings claim based on the EPA § 404(c) veto, holding that the claim was timely filed. Id. at 633. The permanent takings claim is on remand to the Claims Court. See Creppel v. United States, 33 Fed. Cl. 590 (1995) (denying motion to amend and denying certain claims).

98. Exec. Order No. 12630, 3 C.F.R. § 554 (1989) (Governmental Actions and Interference with Constitutionally Protected Property Rights). Under EO 12630, agencies must prepare an assessment of regulatory actions identifying the "takings implications of proposed regulatory actions and addressing the merits of those actions in light of the identified takings implications." Id. § 5(b).

99. Id. § 6.

100. 24 Cl. Ct. 540 (1991).

101. 33 U.S.C. § 1344(g)-(k), ELR STAT. FWPCA § 404(g)-(k). For a thorough review and analysis of § 404 delegation, see Oliver A. Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 MD. L. REV. 1242 (1995).

102. Michigan assumed the program as of October 16, 1984. See 49 Fed. Reg. 38947 (Oct. 2, 1984).

103. New Jersey's program took effect on March 2, 1994. See 59 Fed. Reg. 9933 (Mar. 2, 1994); see also 58 Fed. Reg. 36958 (July 9, 1993) (proposed approval); id. 46190 (Sept. 1, 1993) (final approval).

104. 33 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b); see U.S. EPA Office of Wastewater Management, Permits Division, NPDES Program Branch, State NPDES Program Status List (May 8, 1995).

105. H.R. 961, supra note 5, § 803, amending 33 U.S.C. § 1344(l) ELR STAT. FWPCA § 404(l).

106. 794 F. Supp. 674, 23 ELR 21185 (W.D. Mich. 1992), aff'd, 35 F.3d 1073, 24 ELR 21490 (6th Cir. 1994).

107. The district court opinion is discussed in WETLANDS DESKBOOK, supra note 2, at 69-70.

108. 33 U.S.C. § 1344(j), ELR STAT. FWPCA § 404(j); 40 C.F.R. § 233.50(j).

109. Friends of the Crystal River, 35 F.3d at 1079-80, 24 ELR at 21493.

110. Id. at 1077-79, 24 ELR at 21492-93.

111. 33 C.F.R. § 325.5(c)(3).

112. See Houck & Rolland, supra note 101, at 1283. There are statewide general permits in effect in more than 15 states.

113. See id. at 1283-84.

114. See id. at 1284-85.

115. U.S. EPA, DEP'T OF THE ARMY, U.S. FISH AND WILDLIFE SERVICE, AND NATIONAL MARINE FISHERIES SERVICE, ALASKA WETLANDS INITIATIVE: SUMMARY REPORT (May 13, 1994) [hereinafter ALASKA WETLANDS INITIATIVE REPORT] (available from the ELR Document Service, ELR Order No. AD-2929).

116. Memorandum from Robert H. Wayland, EPA, and Michael L. Davis, Dep't of the Army, to Alvin L. Ewing, EPA Region X, and Maj. Gen. Stanley G. Genega, U.S. Army Corps of Eng'rs, Statements on the Mitigation Sequence and No Net Loss of Wetlands in Alaska (May 13, 1994) [hereinafter Mitigation Sequence and No Net Loss Memorandum] (available from the ELR Document Service, ELR Order No. AD-2930).

117. ALASKA WETLANDS INITIATIVE REPORT, supra note 115, at 2 (reference omitted).

118. Id. at 16-17.

119. Id. at 24-25.

120. Id. at 11.

121. Mitigation Sequence and No Net Loss Memorandum, supra note 116, Attachment 1: Requirements of the Clean Water Act Section 404 Regulatory Program: Applying Flexibility in Alaska.

122. Id. at 2-3.

123. Mitigation Sequence and No Net Loss Memorandum, supra note 116, Attachment 2: Applying the No Overall Net Loss of Wetlands Goal in Alaska.

124. Id. at 6.

125. Id.

126. See WETLANDS DESKBOOK, supra note 2, at 73.

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

A number of authors have addressed wetlands in relation to agriculture. See, e.g., John M. Evans, Agricultural Law: New Directions in Regulation, 21 COLO. L. REV. 865 (1992); Stewart L. Hofer, Federal Regulation of Agricultural Drainage Activity in Prairie Potholes: The Effect of Section 404 of the Clean Water Act and the Swampbuster Provisions of the 1985 Farm Bill, 33 S.D. L. REV. 511 (1987-1988); Gerald Tories, Wetlands and Agriculture, 34 KAN. L. REV. 539 (1986).

128. 16 U.S.C. § 3821. For a more detailed description of the swampbuster program, see WETLANDS DESKBOOK, supra note 2, at 73.

129. 16 U.S.C. §§ 3830(a), 3837-3837(f). For a more detailed description of the wetlands reserve, see WETLANDS DESKBOOK, supra note 2, at 73-74.

130. Federal Agriculture Improvement and Reform Act of 1996, Pub. L. No. 104-127, 110 Stat. 888 (Apr. 4, 1996) [hereinafter 1996 FSA Amendments].

131. Id. § 321, amending 16 U.S.C. § 3821, FSA § 1221.

132. Id. § 322(f), amending 16 U.S.C. § 3822(h), FSA § 1222(h).

133. Id. § 322, amending 16 U.S.C. § 3822(a), FSA § 1222(a).

134. Id., amending 16 U.S.C. § 3822(a)(2), (4), FSA § 1222(a)(2), (4).

135. See infra notes 151-55 and accompanying text.

136. 1996 FSA Amendments, supra note 130, § 322, amending 16 U.S.C. § 3822(b)(1), FSA § 1222(b)(1).

137. Memorandum of Agreement Among the Department of Agriculture, the Environmental Protection Agency, the Department of the Interior, and the Department of the Army Concerning the Delineation of Wetlands for Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food Security Act (Jan. 6, 1994), reprinted in 59 Fed. Reg. 2920 (Jan. 19, 1994) [hereinafter MOA on Agricultural Wetland Delineations] (available from the ELR Document Service, ELR Order No. AD-173); see infra notes 156-57 and accompanying text; see also Strand, supra note 34, at 10287.

138. 1996 FSA Amendments, supra note 130, § 325(a).

139. Id., amending 16 U.S.C. § 3822(b)(2), FSA §1222(b)(2).

140. Id., amending 16 U.S.C. § 3822(d), FSA § 1222(d).

141. Id. § 322(d), amending 16 U.S.C. § 3822(f), FSA § 1222(f).

142. Id. § 333, amending 16 U.S.C. § 3837(b)(1), FSA § 1237(b)(1).

143. Id. § 341, amending 16 U.S.C. § 3843(f)(1), FSA § 1243(f)(1). The conservation reserve is described in WETLANDS DESKBOOK, supra note 2, at 73-74.

144. 1996 FSA Amendments, supra note 130, § 341, amending 16 U.S.C. §§ 3841-3843, FSA §§ 1241-1243.

145. Id. §§ 351-360.

146. Id. § 385(a).

147. Id. § 385(b).

148. Id. § 387.

149. Id. § 316, adding FSA § 1215(a), (b).

150. Id., adding FSA § 1215(c).

151. 16 U.S.C. § 3822(b)(1)(A).

152. Id. § 3822(b); 7 C.F.R. § 12.5(b) (1994).

153. 58 Fed. Reg. 17211 (Apr. 1, 1993).

154. 33 C.F.R. § 328.3(a)(8) (1994); see also Strand, supra note 34, at 10294.

155. See 58 Fed. Reg. 45032 (Aug. 25, 1993).

156. MOA on Agricultural Wetland Delineations, supra note 137; see also Strand, supra note 34, at 10287.

157. See supra note 138 and accompanying text.

158. See WETLANDS DESKBOOK, supra note 2, at 83.

159. Exec. Order No. 11990, § 1(a), 3 C.F.R. § 121 (1978), as amended by Exec. Order No. 12608, 3 C.F.R. § 245 (1988), ELR ADMIN. MAT. II 45019.

160. Exec. Order No. 11988, 3 C.F.R. § 117 (1988), as amended by Exec. Order No. 12148, 3 C.F.R. § 412 (1980), ELR ADMIN. MAT. II 45019.

161. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

162. No. 88-0301, 24 ELR 20200 (D.D.C. July 30, 1993).

163. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-201, 401-908.

164. 43 C.F.R. § 3461.5.

165. National Wildlife Federation, 24 ELR at 20204-05.

166. Id. at 20205.

167. Id.

168. Id. at 20206.

169. 997 F.2d 328, 23 ELR 20989 (7th Cir. 1993).

170. Id. at 331-32, 23 ELR at 20991.

171. See, e.g., Noah's Architecture: Let's Not Rebuild on the Flood Plain, WASH. POST, Sept. 12, 1993, at C5.

172. H.R. 961, supra note 5, Title III, § 321.

173. See WETLANDS DESKBOOK, supra note 2, at 81-82, 97.

174. 820 F. Supp. 1026, 23 ELR 21434 (N.D. Miss. 1993).

175. See id. at 1027, 23 ELR at 21435.

176. Harris v. United States, 820 F. Supp. 1018 (N.D. Miss. 1992).

177. See WETLANDS DESKBOOK, supra note 2, at 14-16 (describing the three physical criteria for identifying and delineating wetlands); see also Strand, supra note 34, at 10284, 10286.

178. Harris, 820 F. Supp. at 1029, 23 ELR at 21436.

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

180. Harris, 820 F. Supp. at 1031, 23 ELR at 21437.

181. Id.

26 ELR 10399 | Environmental Law Reporter | copyright © 1996 | All rights reserved