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

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Lawyers, Swamps, and Money is an accessible, engaging guide to the complex set of laws governing America's wetlands. After explaining the importance of these critical natural areas, the book examines the evolution of federal law, principally the Clean Water Act, designed to protect them.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

  • the geographic scope and activities covered by the Clean Water Act
  • the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency
  • the goal of no net loss of wetlands
  • the role of entrepreneurial wetland mitigation banking
  • the tension between wetland mitigation bankers and in-lieu fee mitigation programs
  • wetland regulation and private property rights.

The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
A prominent legal scholar and wetlands expert, professor Royal C. Gardner has a rare knack for describing landmark cases and key statutes with uncommon clarity and even humor. Students of environmental law and policy and natural resource professionals will gain the thorough understanding of administrative law needed to navigate wetlands policy-and they may even enjoy it.

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Editorial Reviews

Professor of Law, Boston College Law School - Zygmunt Jan Broël Plater
"Lawyers, Swamps, and Money pulls off several neat tricks: It not only threads a clear path through the present complexity of wetlands protection law while thoughtfully charting important national win-win strategies for the future, but it also does so in a style that is helpful for both citizen activists and environmental attorneys."
Ocean and Coastal Law Journal

"In conclusion, Lawyers, Swamps, and Money is both comprehensive and complete. Professor Gardner brings to bear his considerable experience in wetland law to create a book that is both concise and refreshing in its treatment of the issues at hand. Throughout the book, Gardner's humor adds a pleasant touch that keeps the reader turning the pages. In the end, the reader is left with a strong impression that wetland policy is in need of change; just how to implement that change in the face of economic and environmental pressures is the intellectual challenge. In short, this book is a must read for anyone interested in learning about or hoping to change wetland policy in the United States."

"Swamps seldom are an engaging topic of conversation, let alone of a book. Lawyers, Swamps, and Money is the exception....Overall, the book is an excellent addition for collections on law, public policy, and the environment."
Professor of Law, Boston College Law School - Zygmunt Jan Broël Plater

"Lawyers, Swamps, and Money pulls off several neat tricks: It not only threads a clear path through the present complexity of wetlands protection law while thoughtfully charting important national win-win strategies for the future, but it also does so in a style that is helpful for both citizen activists and environmental attorneys."
Natural Hazards Observer

"For a legal lesson, the book is surprisingly readable. Gardner sprinkles it with swamp humor and insights—from Shakespeare to Gary Larson. In conclusion, Gardner comes across as an optimist, proposing a laundry list of reforms to lead regulators and administrators out of the, er, swamp of wetlands management."
Madsen Environmental

"...if a normal law book is like eating your brussels sprouts, this book is guacamole funny. Mr. Gardner has a light tone and peppers the book with humorous illustrations and anecdotes, while sneaking in nutritious law and policy. ... So in short, you should buy this book if you are: a U.S. wetland regulator, policy-maker, lawyer, banker, in-lieu fee provider, researcher, or consultant."
Environmental Law Professor Blog

"Lawyers, Swamps, and Money explains the importance of America's wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner's writing is simultaneously substantive and accessible to a wide audience—from policy makers to students to citizen activists."
Professor of Property, Florida State University College of Law - J.B. Ruhl

"Gardner, unquestionably one of the nation's leading experts on wetland law and policy, has provided something for everyone interested in the field. Lawyers, Swamps, and Money will serve as an invaluable primer for students and others just entering the mystifying world of wetlands, and it is also chock full of insights and information that will add to any expert's appreciation and understanding."
Aldo Leopold Chair of Restoration Ecology, University of Wisconsin-Madison - Joy B. Zedler

"With a clear, logical, and humorous style, Gardner describes the antics of land owners, regulators, and justices—all of which would be funnier if they weren't true and if the stakes were not so high. Those who want to understand why we don't have clean water, and all who want to correct the problems, need to begin by reading this book!"
partner, Venable LLP - Margaret "Peggy" Strand

"Want to be entertained reading about wetlands law? Written with wit and solid research, Roy Gardner has converted the complex legal history of federal wetlands law into a delightful, good read."
Professor of Law, Boston College Law School - Zygmunt Jan Bro�l Plater

"Lawyers, Swamps, and Money pulls off several neat tricks: It not only threads a clear path through the present complexity of wetlands protection law while thoughtfully charting important national win-win strategies for the future, but it also does so in a style that is helpful for both citizen activists and environmental attorneys."
Environmental Law Professor Blog - Blake Hudson

"Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists."

"Swamps seldom are an engaging topic of conversation, let alone of a book. Lawyers, Swamps, and Money is the exception....Overall, the book is an excellent addition for collections on law, public policy, and the environment."

"Swamps seldom are an engaging topic of conversation, let alone of a book. Lawyers, Swamps, and Money is the exception....Overall, the book is an excellent addition for collections on law, public policy, and the environment."

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Product Details

  • ISBN-13: 9781597268158
  • Publisher: Island Press
  • Publication date: 4/15/2011
  • Edition description: 1
  • Pages: 280
  • Product dimensions: 6.00 (w) x 8.90 (h) x 0.70 (d)

Meet the Author

Royal C. Gardner is Professor of Law and Director of the Institute for Biodiversity Law and Policy at Stetson University.

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Read an Excerpt

Lawyers, Swamps, and Money

U.S. Wetland Law, Policy, and Politics

By Royal C. Gardner


Copyright © 2011 Royal C. Gardner
All rights reserved.
ISBN: 978-1-61091-025-5


The Ebb and Flow of Public Perceptions of Wetlands

If there is any fact which may be supposed to be known by everybody, and therefore by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances.

—Leovy v. United States, 177 U.S. 621, 636 (1900)

At the beginning of the twentieth century, the U.S. Supreme Court reflected the common view of wetlands: they were dank, dark places that threatened public health and welfare. In the 1900 case of Leovy v. United States, the Court considered the value of land in its natural condition versus its value in a developed state, a question that has continuing resonance today. Noting that the wet area would be worth sixty times more in agricultural production (from a mere $5,000 to a grand $300,000), the Court upheld the right of Louisiana to construct dams that dried out the swampy lands. Indeed, the Court observed that government not only had the power to conduct these reclamation efforts, but it was its duty to do so. Swamps and their ilk were nuisances to be drained, and the newly available land could be put to beneficial, economic use.

Wetlands have long suffered from a public relations problem. In the legend of Hercules, he must confront the many-headed Lernaean Hydra, whose home is a swamp. Ancient Greeks also believed that limniads (nymphs), which inhabited marshes and swamps, would occasionally drown people. Scottish folklore warned that the airborne fluff from marsh cattails were shape-shifted witches traveling to a secret rendezvous. The miasmic mist of swamps was once thought to cause disease and illness. Sometimes the formal names of these areas evoked dread and gloom—even hell. The military surveyor credited with naming the Great Dismal Swamp in Virginia and North Carolina certainly did not consider it to be a vacation destination. Indeed, one wetland historian observed that the word dismal is "derived from Dismus, the name of the thief crucified with Jesus," and thus for Christians, the word "readily signified an alliance with Satan" (Vileisis, 1997). Wetlands could be good places to dispose of garbage and bodies. The brackish marshes of New Jersey's Hackensack Meadowlands are an important Atlantic flyway for migratory birds (Tiner et al., 2002), but they are perhaps better known as trash landfills and the rumored resting place of Jimmy Hoffa.

Cultural references reinforced the notion of wetlands as public nuisances. In 1943, for example, the Walt Disney Studio produced an educational animated short entitled The Winged Scourge, which explains how Anopheles mosquitoes spread malaria. The Seven Dwarfs are then enlisted to combat this threat by destroying the mosquitoes' breeding grounds. The cartoon follows the diminutive fellows exhibiting the teamwork for which they are known: Doc and Sneezy quickly cut cattails; Happy enthusiastically spreads oil on open water; Bashful diligently sprays "a thin film" of Paris Green (arsenic and copper) on bottomland hardwoods; and even Sleepy industriously ditches and drains ponds and other waters. Oddly, Snow White does not make an appearance to supervise their work.

Books have emphasized the forbidding nature of wetlands. From classics such as The Hound of the Baskervilles (Grimpen Mire) to comic books like Swamp Thing, wetlands are portrayed as dangerous places. Lord of the Rings devotees (who clearly have too much time on their hands) even have a Web site devoted to the various bogs and mires of Middle Earth, none of which appears easy to traverse. The image of wetlands fared equally poorly in movies, from Labyrinth with its bog of eternal stench (and David Bowie as the Goblin King) to The Princess Bride with its fire swamp (and rodents of unusual size). Even Monty Python and the Holy Grail lampooned the difficulty of building in a wetland, as the King of Swamp Castle explained:

When I first came here, this was all swamp. Everyone said I was daft to build a castle on a swamp, but I built it all the same, just to show them. It sank into the swamp. So I built a second one. That sank into the swamp. So I built a third. That burned down, fell over, then sank into the swamp. But the fourth one stayed up. And that's what you're going to get, Lad, the strongest castle in all of England.

Of course, all does not end well for the King of Swamp Castle and the wedding party.

Often an underlying theme is that wetlands can be put to a better use. The 195 7 children's book Dear Garbage Man perfectly captures this view of wetlands. First published ten years after Marjory Stoneman Douglas's The Everglades: River of Grass, Dear Garbage Man is a heartwarming tale of a rookie sanitation man who decides that much of the discarded refuse along his route can be recycled or reused. He embarks on a crusade to give away all his garbage, and at the end of the day his truck is empty. Alas, he discovers the following morning that the trash bins are refilled with the same items, as people found them just a tad too damaged. He consoles himself by observing that the garbage can be used to fill "lots and lots of swamps" for playgrounds and schools (figure 1-1). Dear Garbage Man and its anti-recycling theme enjoyed a second printing in 1988.

Recently, wetlands have become less foreboding and more hip. Wetlands Preserve was the name of an activist music club in Tribeca in New York City from 1989 to 2001 (figures 1-2 and 1-3). A documentary on the club's history, Wetlands Preserved, received an award for best unreleased film at the 2006 High Times Stony Awards, perhaps unfortunately reinforcing the stereotype that many environmentalists are drug-addled socialists who have no respect for private property. On the more conservative side of the political spectrum (albeit facetiously), the Colbert Report on Comedy Central is co-produced by Spartina Productions. Spartina is cordgrass, a plant species found in coastal wetlands, and each show ends by reversing the food chain as a small fish swallows a large heron or egret. There is even an adult Web site with "wetlands" in its title, although this features a markedly different type of wildlife.

The public perception of wetlands has indeed undergone a remarkable transformation. In the television series The X-Files, Sheriff Hartwell observes that "[w]e used to have swamps, only the EPA made us take to callin' them wetlands." As Gary Larson suggests, the term "wetland" itself projects a certain respectability otherwise lacking for the mere swamp, marsh, or bog (figure 1-4).

Rather than being viewed as mosquito-breeding nuisances (or cheap land to drain and fill), wetlands are now appreciated for the many benefits that they provide. There is a World Wetlands Day (February 2), which commemorates the signing of the Ramsar Convention, an international treaty promoting wetland conservation, and an entire American Wetlands Month (May), which celebrates the value of wetlands.

Schoolchildren today learn the litany of wetlands functions. Wetlands, they are told, provide important habitat for fauna and flora. The list of endangered and rare species that depend on healthy wetlands runs from the perhaps still-extant ivory-billed woodpecker in the Cache River National Wildlife Refuge in Arkansas (known as the Lord God bird for the exclamation one would utter upon witnessing it) to the less well known and smaller fairy shrimp in the vernal pools of California. Wetland supporters and educators typically emphasize this function with good justification. In terms of marketing, who among us (including many developers) does not love endangered species, especially charismatic megafauna? Animals—and the cuter or bigger, the better—can help sell any product or cause. This is why one of the most popular specialty license plates in Florida pictures the native panther, all the while we build new roads, which opens new areas to development, which in turn shrinks the panther's habitat.

But wetlands benefit more than just plants and animals. People often derive benefits—ecosystem services—from wetland functions too. Indeed, the ecosystem services provided by wetlands can be of great economic value. The commercial freshwater and marine fisheries industry needs vibrant wetlands; approximately 75 percent of commercial fish and shellfish in the United States rely on estuaries and coastal wetland systems (EPA, 2010b). Striped bass, bluefish, croaker, flounder, menhaden, sea trout, and spot are just some of the more well known wetland-dependent fish. Wetlands are important in the life cycles of anadromous species such as chinook and coho salmon, as well as catadromous species such as eel. Shrimp and crabs also spend time in estuarine and tidal wetlands during their life cycles. There is a reason why the seafood industry supported the federal Coastal Wetlands Planning, Protection and Restoration Act and other efforts to restore Louisiana's marshes. The bumper sticker that cautions "No Wetlands, No Seafood" is largely accurate.

In a related vein, wetlands also can help maintain or improve water quality. Wetland plants and soils have the capacity to remove nutrients such as nitrogen and phosphorous (as well as toxics) in runoff, thus reducing algal blooms and depleted oxygen levels in water downstream. New York City, a locale not necessarily known for its wetlands (except for the nightclub), has recognized the value of protecting wetlands in a watershed context. Rather than spending more than $3 billion in new wastewater treatment plants (with some estimates as high as $8 billion), the city decided to achieve the same level of protection by investing $1.5 billion in protecting land surrounding its upstate reservoirs (Kenny, 2006). Similarly, a key component of the Comprehensive Everglades Restoration Plan (CERP) contemplates converting agricultural lands into stormwater treatment areas (i.e., wetlands) to improve the quality of water heading toward Everglades National Park. While the CERP might fail for many reasons (such as the inability to stem development and population growth in Florida and the failure to take sea-level rise into account), the stormwater treatment concept is sound.

Wetlands can also limit damages from natural events by virtue of their flood storage and storm attenuation functions. Wetlands can act like sponges; when tides rise or rivers overflow their banks, adjacent wetlands can absorb the excess water quickly and release it slowly. When wetlands are filled or lost, the remaining area (whether developed or open water) cannot offer the same level of protection. Thus, when the record and near-record rains fell in the Midwest in 1993, the water had no place to go, as many wetlands had been converted to agricultural production. The Great Midwest Flood of 1993 caused almost $20 billion in damage in nine states and was called the "most devastating flood in modern United States history" (Kolva, 1996), at least until Hurricane Katrina in 2005. The destruction along the Gulf Coast caused by Katrina, especially the inundation of New Orleans, highlighted the vulnerability of coastal populations when their protective wetland barriers have been diminished. While intact wetland systems would not have prevented the devastation of Hurricane Katrina (or the 2004 Indian Ocean tsunami for that matter), they would have militated its effects (Ramsar Convention Secretariat, 2010a).

Finally, wetlands can serve as a refuge not only for animals but for people as well. It would be difficult to overstate the recreational value of wetlands, both in terms of aesthetics and economics. Certain segments of the public love wetlands and their wildlife. In fact, wetland-dependent birds prompt millions of people each year to tromp out to swamps, marshes, playa lakes, prairie potholes, and other wetlands. The U.S. Fish and Wildlife Service (2009) estimates that these avian aficionados spend billions of dollars annually to watch these birds or to photograph them. Or to shoot them. The "hook and bullet" crowd was among the first to recognize that protecting wetlands was in its self-interest. Fewer wetlands translate directly into fewer ducks. The Duck Stamp Program—whereby a hunter pays a licensing fee for the right to shoot a certain amount of waterfowl—was one of the early federal efforts to conserve wetlands. Today, Ducks Unlimited (a hunting organization) is one of the largest supporters of wetland restoration efforts in the United States.

So there are a host of reasons to protect wetlands, whether you are a hunter or birdwatcher, coastal resident or insurance adjuster, environmental engineer or New York City budget analyst, seafood lover or waiter, or merely a nature enthusiast. But one particular challenge to protecting wetlands (and there are many) is that in the continental United States approximately 75 percent of wetlands are in private ownership. At least this is the statistic that is commonly cited, and having been repeated enough times it has achieved an air of authenticity. Regardless of the exact percentage, however, questions about private property rights influence the debate about wetland protection: How should we as a society balance an individual's private property rights with the public benefits that wetland ecosystem services provide? What legal and policy mechanisms should we use to strike a proper balance?

In exploring these questions, we must consider the intersections of law, science, and politics. The definition of wetlands—what is and what is not a wetland—might be viewed merely as a scientific matter, but it has legal and political dimensions. Similarly, the goal of "no net loss" of wetlands might seem to be amenable to a straightforward scientific accounting, but the reality is much messier. Furthermore, who gets to make decisions about whether to permit wetland-destroying activities is far from clear and can raise fundamental constitutional issues. In some ways, wetland regulation in the United States begins and ends with the Constitution. As an initial matter, does Congress have the authority under the Commerce Clause or other provisions of the Constitution to regulate activities that damage wetlands ? Or is this a responsibility under our federal system of government that must be left to state and local governments? At the end of the line, what happens when a wetland permit is denied (whether the decision maker is federal or state or local)—does the Constitution require that the disappointed property owner receive just compensation?

The study of wetland policy goes well beyond constitutional issues, however. It involves the scientific (and policy) challenges associated with endangered and exotic species, practical difficulties of enforcement actions, and political calculations. One of the most fascinating and controversial developments is the rise of wetland mitigation banking. Mitigation banking is an incentive-based, or market-based, approach to protecting wetlands. It typically involves an entrepreneur who restores a wetland, thereby generating environmental "credits" that can then be sold to developers to offset their wetland impacts. Entrepreneurial mitigation bankers and their partners are an eclectic group that includes former developers who have seen the light, environmental organizations, sod farmers, and Trappist monks.

But to fully appreciate all of these issues—from the loftiest constitutional principles to a mitigation banker's actions on the ground—you need to have a basic understanding of administrative law, a topic to which we will now turn.


Administrative Law: The Short Course

Elizabeth: Wait! You have to take me to shore. According to the Code of the Order of the Brethren ...

Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

—Pirates of the Caribbean: The Curse of the Black Pearl (2003)

If wetlands suffered from a public relations problem, its counterpart in law schools is Administrative Law. Administrative Law is not part of the first-year law school curriculum, like Property or Contracts. No one makes movies like The Paper Chase or Legally Blonde about an Administrative Law course. On the surface, Administrative Law seems to lack the sexiness and political controversies associated with Constitutional Law and Criminal Law. In many law schools, it is not even required for graduation. Yet Administrative Law is, or at least can be, a keystone course. And it requires, as Elizabeth in Pirates of the Caribbean discovered to her detriment, the ability to understand the difference between a code or statute and mere guidance: How are rules made and when must they be followed?

Legal education, especially in the first year, is largely mired in the common law and the study of judicial decisions. Law school calls on students (literally) to scrutinize a case, recite the pertinent facts, identify the holding (or core decision) of the court, and distill its reasoning, which may be applied or distinguished in future cases. To be sure, knowledge about the common law is important for an environmental lawyer, at a minimum for historical purposes; environmental law has its origins in the common law. Legal historian Daniel Coquillette (1979) has written about William Aldred's Case, a 1611 nuisance case over the conversion of a sweet-smelling orchard to a noxious hog farm. William Aldred's Case was more than a mere property law dispute; it can be seen as an early air pollution case.


Excerpted from Lawyers, Swamps, and Money by Royal C. Gardner. Copyright © 2011 Royal C. Gardner. Excerpted by permission of ISLAND PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Acknowledgments xv

Introduction 1

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

Chapter 2 Administrative Law: The Short Course 15

What are agencies and who made them the boss? 17

What exactly does an agency do? 22

How are regulations made? 23

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

Navigating from statute to regulation to guidance 25

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

Executive Branch 28

Legislative Branch 29

The Media 29

Judicial Branch 30

Constitutional Considerations 30

Statutory Standing 32

Ripeness 33

Chevron Deference 33

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

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

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

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

Rapanos v. United States: A trifurcation of confusion 48

post-Rapanos response 52

The constitutional limits of the Clean Water Act 54

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

A lesson for young lawyers: Read the statute 57

Does landclearing require a Clean Water Act permit? 58

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

Neatness counts: Exploiting a loophole 61

The inevitable blowback: The regulated community responds 62

Deep plowing or deep ripping? The Borden Ranch case 64

Fill, baby, fill 65

Mountaintop removal and nationwide permit 21 67

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

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

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

The heart of the Guidelines: The alternatives analysis 76

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

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

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

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

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

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

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

The starting point: A nation of farmers 94

If you build it, they will come 95

The other illegal alien problem: Invasive species 97

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

Offsetting development impacts: Compensatory mitigation 101

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

Net gains on agricultural lands 104

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

No net loss: Mission accomplished? 109

Chapter 7 Wetland Mitigation Banking: Banking on Entrepreneurs 111

What is wetland mitigation banking? 112

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

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

The 1995 mitigation banking guidance 117

Congress provides a market (and ratifies the guidance) 119

How much can I sell a wetland credit for? 120

The good, the bad, and the ugly 123

Panther Island Mitigation Bank (Florida) 123

Mud Slough (Oregon) 124

Black River Basin Mitigation Bank (South Carolina) 124

Woodbury Creek (New Jersey) 125

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

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

What is in-lieu fee mitigation? 129

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

"Educational" mitigation 133

Conflict of interest: Agency as regulator and competitor? 134

Timing in life is everything 135

But they're the good guys! 136

The 2000 in-lieu fee guidance 137

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

Chapter 9 Leveling the Mitigation Playing Field 141

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

You could have at least called ... 142

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

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

Congress (re-)enters the fray 145

Proposed compensatory mitigation rule 146

O'Harc Airport and the return of CorLands 147

Reconsidering in-lieu fee mitigation 149

Finally, the final rule emerges 151

Sequencing and avoidance 151

Equivalency in mitigation plans 152

Nonequivalency in the timing of the use of mitigation credits 153

The mitigation hierarchy 155

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

Chapter 10 Wetland Enforcement: The Ultimate Discretionary Act 159

Who is the lead enforcement agency? 159

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

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

After-the-fact permits: All is forgiven 164

Administrative penalties: Adjudication by the agencies 165

Civil penalties: Potentially real money, rarely invoked 166

Settlements, supplemental environmental programs, and other payments 168

Criminal penalties: Muddy jackboots? 169

The least sympathetic defendants 171

Citizen suits: Backing up the government 172

Enforcement of permit conditions: A gap in citizen suits 172

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

Chapter 11 Regulatory Takings in the Wetland Context 177

Preliminary hurdles: Ripeness 178

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

The Penn Central factors 181

Applying the Penn Central factors: The Florida Rock saga 181

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

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

The irrelevance of Lucas 186

Reasonable investment-backed expectations revisited 187

The most sympathetic takings plaintiffs 188

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

Chapter 12 Concluding Thoughts and Recommendations 191

Epilogue: Where Are They Now? 199

Appendix 209

Clean Water Act (excerpts) 209

Epa Regulations 40 CFR Part 230 (excerpts) 211

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

Clean Water Act Guidance Document (excerpts) 220

Endnotes 223

Selected References and Further Reading 229

Index 245

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  • Anonymous

    Posted January 17, 2014

    best way to learn about this

    Wetlands policy is complicated to say the least. But this book does a good job of explaining the history, evolution of law, regs and policy. Uses case studies, and occasional humor. Written for the concerned layperson or professional needing an update. I am so glad someone wrote this book!

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