Wetlands Law: A Course Source Stephen M. Johnson This work is licensed under the Creative Commons Attribution- ShareAlike 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-sa/4.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA. Cover Art by Lyndsey Johnson Table of Contents Acknowledgments About the Author Preface Table of Cases Audio/Video Materials Problems and Exercises Chapter 1 The Science I. Wetland Values and Functions A. Protection of Habitat/Protection of Species and Biodiversity B. Flood Control C. Erosion Prevention and Shoreline Protection/Stabilization D. Water Quality Protection E. Groundwater Replenishment F. Atmospheric Maintenance G. Wetland Products H. Recreation, Aesthetics, Education and Research I. Protection of Cultural Values II. Definition and Types of Wetlands A. Definitions B. Types of Wetlands 1. Cowardin Classification 2. Marshes, Swamps, Bogs and Fens 3. Hydrogeomorphic (HGM) Classification i III. Status and Trends IV. Wetland Delineation (section includes a Research Problem) Chapter Quiz Chapter 2 The History of Regulation I. Early Development Laws II. A Slow Shift to Conservation III. Toward Comprehensive Federal Regulation (section includes a Research Problem) IV. Conservation Programs and Agricultural Programs V. International Wetland Protection - U.S. Role (section includes a Research Problem) VI. The Agencies that Regulate Wetlands (section includes a Research Problem and Hypothetical) A. Corps of Engineers B. Environmental Protection Agency C. U.S. Fish and Wildlife Service D. Natural Resources Conservation Service E. U.S. Department of Justice, Environment and Natural Resources Division Chapter Quiz Chapter 3 Primer on Administrative Law I. Nature of Administrative Agencies II. Limits on Agency Authority A. Statutory Limits B. Constitutional Limits C. Limits Imposed by Other Branches III. Procedural Requirements for Agency Action A. Rulemaking Procedures (includes a Research and Drafting Problem) B. Adjudication Procedures (includes a Hypothetical) IV. Judicial Review of Agency Action A. Prerequisites for a Judicial Challenge ii B. Standards for Judicial Review (includes a Hypothetical) Chapter Quiz Chapter 4 Regulation of Wetlands and Waters of the United States I. Activities Regulated Under the Clean Water Act A. The Rivers and Harbors Act B. The Clean Water Act C. Identifying and Delineating Wetlands (includes a Research Problem and Hypothetical) Section Quiz II. Waters of the United States A. The Corps’ Initial Interpretation B. Expanded Jurisdiction, Adjacent Wetlands and Riverside-Bayview Homes C. Isolated Waters and Wetlands D. Repercussions of SWANCC - Isolated Waters, Non-Navigable Tributaries and Their Adjacent Wetlands 1. Regulatory Response 2. Legislative Response 3. Judicial Response E. Post-Rapanos Developments 1. 2008 Guidance 2. Judicial Interpretation of Rapanos 3. 2011 Guidance and 2014 Proposed Rulemaking (includes a Hypothetical) Chapter Quiz Chapter 5 Additions and Discharges I. Regulated Activities (includes a Hypothetical) A. Landclearing B. Ditching, Draining, and Dredging C. Sidecasting D. Deep Ripping (includes a Hypothetical) E. Competing Permit Programs - 404 v 402 - What is Fill Material? Chapter Quiz iii Chapter 6 Section 404 Permits I. Permit Exemptions II. Nationwide and Other General Permits A. Issuance of General Permits B. Conditions of General Permits (includes a Research Problem) C. Similar in Nature / Minimal Effects D. Combining Permits Section Quiz III. Individual Permits A. The Process 1. Application, Public Notice and Comment 2. Coordination with Other Agencies 3. Hearings and Decision-Making (includes a Research Problem) B. The Standards for Permit Review 1. Public Interest Review 2. Section 404(b)(1) Guidelines (includes a Hypothetical) Chapter Quiz Chapter 7 Mitigation I. Types of Mitigation II. Legal Authority for Mitigation III. Mitigation Sequencing and Permit Conditions IV. Amount and Type of Mitigation Required A. No Net Loss B. On-Site and In-Kind C. Ratios and Timing V. Mitigation Banking A. Benefits of Mitigation Banking B. Historical Development C. Nuts and Bolts of Mitigation Banking (includes a Research Problem) VI. In Lieu Fee Programs A. Benefits and Concerns B. History and Regulation (includes a Hypothetical) Chapter Quiz iv Chapter 8 EPA’s Role and EPA Vetoes I. EPA’s Role in the Section 404 Permitting Process II. EPA’s Veto Authority A. Authority and Procedures 1. Section 404(q) and Elevation of Permit Disputes (includes a Research Problem) 2. Section 404(c) Procedures (includes a Research Problem) B. Timing of the Veto C. Standards for the Veto (includes a Drafting Exercise) Chapter Quiz Chapter 9 States’ Roles and State Programs I. State Programs A. Federal/State Relationship (includes a Research Problem) B. A Survey of State Programs (includes a Research Problem) II. State Assumption of the Section 404 Program and State Programmatic General Permits A. Assumption of the 404 Permitting Program B. State Programmatic General Permits (includes a Research Problem) III. 401 Certification (includes a Research Problem) IV. Coastal Zone Management Act Certification (includes a Hypothetical) Chapter Quiz Chapter 10 Administrative Appeals, Enforcement & Judicial Review I. Administrative Appeals and Judicial Review A. Administrative Appeals of Corps’ Decisions 1. Reviewable Actions 2. Review Process (includes a Hypothetical and Research Problem) B. Judicial Review 1. Reviewable Actions includes a Hypothetical) 2. Limits on Judicial Review 3. Standards of Review and Remedies v II. Enforcement A. Administrative Enforcement 1. Administrative Compliance Orders and Cease and Desist Letters 2. Administrative Penalty Orders B. Judicial Enforcement - Civil and Criminal 1. Civil Enforcement (includes a Research Problem) 2. Criminal Enforcement (includes 2 Hypotheticals) C. Citizen Suits 1. Suits Allowed 2. Jurisdiction, Venue, and Relief Available 3. Limits on Citizen Suits (includes a Hypothetical and Drafting Exercise) Chapter Quiz Chapter 11 Regulatory Takings I. Background II. Jurisdiction and Timing of Takings Claims (includes a Hypothetical) III. The Takings Analysis IV. Applying Lucas and Penn Central in the Wetlands Context (includes a Hypothetical) V. Mitigation, Permit Conditions and Exactions VI. Other Takings-Related Requirements (includes an Interviewing and Drafting Exercise) Chapter Quiz vi Acknowledgments I would like to thank my wife, Anne, and my children, Lyndsey, Keith and Caroline, for their support and for all of the time that we spent walking, hiking, running, climbing, paddling and otherwise enjoying the outdoors over the years, which provided the inspiration for this project. I would also like to thank Mercer Law School for providing me with a sabbatical and financial support for this project. I owe special thanks to the colleagues who agreed to be interviewed for this project or hosted those interviews and to everyone who provided suggestions and comments on drafts of the work. Finally, I would like to dedicate this project to everyone at CALI and in academia that are working to create the next generation of e-books. vii About the Author Stephen M. Johnson is the W.F.G. Professor of Law at Mercer University Law School in Macon, Georgia. He received his J.D. from Villanova University School of Law and an LL.M. in environmental law from the George Washington University Law School. Prior to teaching, he served as an attorney for the Bureau of Regulatory Counsel in the Pennsylvania Department of Environmental Resources (now DEP) and as a trial attorney for the U.S. Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, where he worked on wetlands litigation and other environmental litigation. He joined the Mercer faculty in 1993 and served as the Associate Dean for Academic Affairs from 2002-2012. He specializes in Environmental Law, but has also taught Torts, Statutory Law, Administrative Law, and Dispute Resolution. His scholarship focuses on wetlands, environmental justice, economics and the environment, technology and the law, and administrative law. In addition to authoring numerous articles on those topics, he has edited an American Bar Association book on Wetlands law and has authored a book on economic approaches to environmental protection. He has also authored several CALI exercises on wetlands and environmental law and has served on the Board of Directors of CALI for more than a decade. While teaching at Mercer, he has been fortunate to teach or visit at Notre Dame Law School, the University of London and Strathclyde University. In 2004, he taught at the University of Tokyo and at Waseda University (Tokyo) on a Fulbright grant. viii Preface Course Source: The Casebook Evolved You’ll notice that these materials are entitled, Wetlands Law: A Course Source. I chose the term “course source”, as opposed to casebook or coursebook, to indicate that the format of these materials is qualitatively different from traditional law school textbooks. I. Traditional casebooks and the evolution of casebooks The law school casebooks that were created in the late 1800's to implement Christopher Columbus Langdell’s case method of teaching consisted primarily of edited versions of cases and perhaps a few questions and comments. Casebooks have evolved slowly over the years. Over time, it became popular to incorporate excerpts from law review articles, statutes and regulations