Lawyers, Swamps, and Money

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 explore topics including the fundamentals of administrative law; the geographic scope and activities covered by the Clean Water Act; the role of entrepreneurial wetland mitigation banking; and private property rights. The book concludes with insightful policy recommendations.

A prominent legal scholar, Roy C. Gardner has a rare knack for describing landmark cases and key statutes with uncommon clarity and even humor. Students and professionals will gain the thorough understanding of administrative law needed to navigate wetlands policy-and they may even enjoy it.

Autorentext

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

Inhalt

Acknowledgments

Introduction

Chapter 1 The Ebb and Flow of Public Perceptions of Wetlands

Chapter 2 Administrative Law: The Short Course

What are agencies and who made them the boss?

What exactly does an agency do?

How are regulations made?

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

Navigating from statute to regulation to guidance

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

Executive Branch

Legislative Branch

The Media

Judicial Branch

constitutional considerations

statutory standing

ripeness

chevron deference

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

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

United States v. Riverside Bayview Homes: Unanimity on adjacent wetlands

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

Rapanos v. United States: A trifurcation of confusion

Post-Rapanos response

The constitutional limits of the Clean Water Act

Chapter 4 Dredge and Fill: The Importance of Precise Definitions

A lesson for young lawyers: Read the statute

Does landclearing require a Clean Water Act permit?

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

Neatness counts: Exploiting a loophole

The inevitable blowback: The regulated community responds

Deep plowing or deep ripping? The Borden Ranch case

Fill, baby, fill

Mountaintop removal and nationwide permit 21

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

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

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

The heart of the Guidelines: The alternatives analysis

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

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

Mississippi casinos: Is gambling a water-dependent activity?

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

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

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

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

The starting point: A nation of farmers

If you build it, they will come

The other illegal alien problem: Invasive species

Agricultural sticks and carrots: Swampbuster and the Wetlands Reserve Program

Offsetting development impacts: Compensatory mitigation

The Cajun solution: Eat a nutria, save a wetland

Net gains on agricultural lands

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

No net loss:Mission accomplished?

Chapter 7 Wetland Mitigation Banking: Banking on Entrepreneurs

What is wetland mitigation banking?

The legal status of mitigation banking (the early years)

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

The 1995 mitigation banking guidance

Congress provides a market (and ratifies the guidance)

How much can I sell a wetland credit for?

The good, the bad, and the ugly

Panther Island Mitigation Bank (Florida)

Mud Slough (Oregon)

Black River Basin Mitigation Bank (South Carolina)

Woodbury Creek (New Jersey)

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

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

What is in-lieu fee mitigation?

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

"Educational" mitigation

Conflict of interest: Agency as regulator and competitor?

Timing in life is everything

But they're the good guys!

The 2000 in-lieu fee guidance

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

Chapter 9 Leveling the Mitigation Playing Field

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

You could have at least called . . .

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

Out of chaos comes order: The National Mitigation Action Plan

Congress (re-)enters the fray

Proposed compensatory mitigation rule

O'Hare Airport and the return of CorLands

Reconsidering in-lieu fee mitigation

Finally, the final rule emerges

Sequencing and avoidance

Equivalency in mitigation plans

Nonequivalency in the timing of the use of mitigation credits

The mitigation hierarchy

But is the compensatory mitigation regulation good for the environment?

Chapter 10 Wetland Enforcement: The Ultimate Discretionary Act

Who is the lead enforcement agency?

Every day is a new day: The continuing violation theory

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

After-the-fact permits: All is forgiven

Administrative penalties: Adjudication by the agencies

Civil penalties: Potentially real money, rarely invoked

Settlements, supplemental environmental programs, and other payments

Criminal penalties: Muddy jackboots?

The least sympathetic defendants

Citizen suits: Backing up the government

Enforcement of permit conditions: A gap in citizen suits

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

Chapter 11 Regulatory Takings in theWetland Context

Preliminary hurdles: Ripeness

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

The Penn Central factors

Applying the Penn Central factors: The Florida Rock saga

Of rats, rabbits, and reasonable investment-backed expectations

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

The irrelevance of Lucas

Reasonable investment-backed expectations revisited

The most sympathetic takings plaintiffs

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

Chapter 12 Concluding Thoughts and Recommendations

Epilogue: Where Are They Now?

Appendix

Clean Water Act (excerpts)

EPA Regulations 40 CFR Part 230 (excerpts)

Corps Regulations 33 CFR Parts 320-332 (excerpts)

Clean Water Act Guidance Document (excerpts)

Endnotes

Selected References and Further Reading

Index