Wetlands Regulations: Considerations for Project Developers

Posted on 12-18-2018

By: Mark A. Chertok and Elizabeth Knauer

This article discusses considerations for developers contemplating the purchase or development of real property that contains or is likely to contain regulated wetlands. The presence of regulated wetlands on a site proposed for development can often present complications in terms of time and expense in securing permits as well as restrictions on the type or magnitude of development that regulators will approve. In some circumstances, permits may be denied altogether. Wetlands can be regulated at the federal, state, and municipal levels. This article focuses on the federal regulatory regime.

Why Regulate Wetlands?

Substantial declines in wetland acreage in the United States have been documented over the past 50 years, as the result of filling for agriculture and other development. 1 Beginning in the 1970s, recognition arose that wetlands—both freshwater and tidal—perform essential functions in preventing flooding through the retention and slow release of excess water. Wetlands purify storm water runoff by filtering out nutrients, sediments, and pollutants, thereby protecting both surface and ground water. They also provide nesting, wintering, resting, and feeding grounds for numerous species of migratory waterfowl. Estuaries provide critical food sources, spawning grounds, and nurseries for coastal fish and shellfish on both coasts. 2 Therefore, they have become the subject of regulatory efforts to protect them, primarily through permitting standards that are designed to require developers to avoid or minimize incursions on wetlands, and to mitigate any loss of wetlands through replacement or restoration projects.

Extent of Federal Jurisdiction over Wetlands

Waters of the United States

The primary basis for the federal regulation of wetlands derives from Section 404 of the Federal Water Pollution Control Act (Section 404), commonly known as the Clean Water Act (CWA). 3 CWA Section 404 grants the U.S. Army Corps of Engineers (Corps) the authority to issue permits for discharges of dredged or fill material into “navigable waters,” which the Act defines as “waters of the United States.” 4 This term includes not only traditional navigable waters but also tributaries thereto, interstate waters and wetlands, and wetlands adjacent to any of these waters. 5 (Traditionally navigable waters are those that “are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” 6 )

A subject of contention and extensive litigation, and which is currently in a state of some uncertainty, has been the extent to which the federal government can regulate intrastate wetlands that are not directly adjacent to navigable waters or their tributaries. Generally speaking, under current interpretation the question is one of the effects of the wetland on the “chemical, physical, or biological integrity” of the navigable water or tributary, or to a wetland adjacent to such a water. 7 This is known, from the concurring opinion in Rapanos , as the significant nexus standard. Practitioners should take note that while the current rule on the books, the 2015 Clean Water Rule (WOTUS rule), which was promulgated by the Obama administration, was intended to apply the plurality opinion in Rapanos , the Trump administration promulgated a rule suspending the applicability of the definitions until February 2020, to allow for the development of a new rule by the current administration. 8 The so-called “suspension rule,” in turn, was challenged by multiple states and was enjoined in a recent district court decision, S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018), whereas decisions in the district courts in Georgia and North Dakota have enjoined the WOTUS rule in the remaining 24 states. Thus, at this particular moment in time, different rules are technically in effect depending on the state; in some, the Obama-era WOTUS rule, and in others, prior versions of the rule, as modified by Rapanos , and 2003 and 2008 guidance documents issued by the Corps and the Environmental Protection Agency (EPA). This is an issue of which to be aware when faced with a property that contains wetlands that are not directly adjacent to interstate waters and their tributaries, as the status of those wetlands under CWA regulation may not be easily ascertained.

Delineation of Wetlands

Wetlands are defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” 9

Three factors have historically been used by federal agencies in technical guidance manuals to delineate wetlands:

  • Hydrophytic vegetation
  • Hydric soil
  • Hydrology

Sufficient hydrology exists when there is inundation of the subject area, by either surface flow or groundwater, for a specified percentage of the growing season (approximately one week is a typical amount of time). The principal criterion for ascertaining the presence of hydrophytic vegetation under normal circumstances is whether more than 50% of the dominant species are obligate wetland plants, facultative wetland plants, or facultative plants. There is no minimum size requirement. The Corps maintains national, regional, and state Wetland Plant Lists, which characterize species based on whether their presence is reflective of wetland conditions. 10 Hydric soils can be identified by field comparison of soil color at pertinent depths to soil color charts, which reflect the anaerobic conditions typical of water-saturated soils. 11

When a site proposed for development contains or abuts surface waters and/or appears to contain wetlands, it is advisable to engage a consultant with expertise in wetlands delineation to assess whether jurisdictional wetlands are present, either as part of due diligence, if possible before purchase, or as early as possible in development planning.

Prior Converted Cropland

While the phrase “under normal circumstances” is meant to preclude the avoidance of CWA jurisdiction through hydrological interventions, if areas that were previously wetlands are “prior converted cropland,” they are exempt from regulation. 12 This term is defined by the National Food Security Act Manual as areas where cropping commenced before December 23, 1985 to the extent these areas no longer exhibit important wetland values and are inundated no more than 14 consecutive days during the growing season. However, if these croplands are not farmed for five years and wetland conditions reappear, the area is subject to regulation.

The Corps, or in certain special cases, the U.S. EPA, issues formal jurisdictional determinations on request, to allow property owners to understand the extent of CWA jurisdiction the government believes exists within a property.

For more information on jurisdictional determinations, including administrative appeals and judicial review, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

Regulated Activities

Generic Permit Requirement

Even where jurisdiction is established, not all activities in wetlands are regulated under Section 404. CWA Section 404 requires permits for discharges of dredged or fill material. Dredged material is defined as “material that is excavated or dredged from waters of the United States.” 13

Fill material is defined as “material placed in waters of the United States where the material has the effect of: (i) Replacing any portion of a water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States.” 14 The regulations provide examples of fill material, which “include, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States.” 15

For more information on the definition of dredged and fill material, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

Land clearing, grading, trenching for utilities, or building in a jurisdictional wetland will generally be considered discharges that require a Section 404 permit. In addition, the Corps and EPA have expanded the definition of discharge to encompass a wide variety of activities.

Development Activities Not Requiring a Section 404 Permit— Usually

The removal of vegetation without mechanized equipment, or the cutting of vegetation above the ground without disturbance of the root systems, is not subject to regulation under Section 404, as it is not considered filling. 16 In addition, a permit may be avoided for mechanized land clearing activities, ditching, channelization, or other excavation activity by demonstrating to the Corps or EPA that the activity will not destroy or degrade a wetland or other water of the United States. 17

Piles are not considered fill material, and thus placement of piles is generally not considered a regulated activity, except where piles would serve to cause sediment to drop out of the water column and become the equivalent of filling. 18

The CWA exempts some types of activities from regulation under Section 404, including certain farming and timbering activities that are part of established, ongoing operations. 19 However, if land has not been farmed for so long that draining or other hydrological modifications to wetlands are necessary to resume operations, the exemption does not apply. 20

Emergency repair of recently damaged but still serviceable structures is exempt, as is the construction of certain types of roads and ditches for mining and agricultural purposes. The maintenance of drainage ditches is also exempt, so long as the original physical configuration remains unchanged. 21 However, the construction of minor drainage ditches is subject to regulation if it entails discharges and/or the drainage of a water of the United States. 22

For more information on exemptions under Section 404, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

The Individual Permitting Process

The Basic Process

Individual permits are required from the Corps for discharges that are not exempt or authorized by a letter of permission or a general permit. The permitting process entails a public interest review, consideration of CWA Section 404(b)(1) guidelines, and the application of other statutory authority. A key element in the permitting process is the sequencing for the evaluation of wetland impacts: avoidance, minimization, and compensation. It is critical that an applicant demonstrate that it can satisfy this sequencing. An applicant must first avoid wetland impacts to the maximum extent practicable. If such impacts cannot be avoided, then they must be minimized to the extent appropriate and practicable.

Section 404(b)(1) Guidelines

These guidelines, developed jointly by the Corps and EPA and codified in 40 C.F.R. Part 230, establish substantive aquatic criteria for Section 404 permits. They contain three principal elements:

  • The alternatives requirement
  • The prohibition of significant degradation
  • The mitigation provisions

Alternatives

The applicant has the burden of demonstrating that there is no practicable alternative to the proposed activity that would have less adverse impacts on the aquatic environment, provided that an alternative does not have other significant adverse environmental consequences (not limited to the aquatic environment). 23 For activities that are not water-dependent (i.e., do not require a location in wetlands to fulfill their basic purpose), the guidelines establish a presumption that there are such practicable alternatives. 24 If a project is not water- dependent, this presumption must be rebutted for a permit to be granted.

Significant Degradation

The proposed discharge cannot cause or contribute to the significant degradation of waters of the United States. 25 In determining significant degradation, the Corps must consider direct as well as secondary effects of the discharge. The guidelines specify a series of biological and chemical calculations to be made in furtherance of this determination. 26 In addition, the guidelines identify other, non-quantifiable factors, such as aesthetics and recreational values. 27 The guidelines also prohibit issuance of a permit for a discharge that would cause or contribute to a violation of water quality standards or toxic effluent standards. 28

Mitigation

The requirement to mitigate wetland impacts as a condition of obtaining a permit is of critical importance to developers, as it can significantly increase the cost of development. The Corps frequently requires a fairly detailed mitigation plan as part of the permit application.

In 1990, the Corps and the EPA entered into a memorandum of agreement (MOA) endorsing a national goal of no net loss of wetlands. 29 The Mitigation MOA establishes a sequencing for the evaluation of mitigation that is derived from applicable regulations and the Section 404(b)(1) guidelines:

  • Avoidance to the maximum extent practicable
  • Minimization of remaining impacts
  • Compensation (mitigation) for unavoidable wetland losses as a last resort

Deviation from strict sequencing is allowable where the Corps and EPA agree that an activity is necessary to avoid environmental harm or would cause insignificant environmental loss. 30

For mitigation to be considered acceptable, it must generally provide at least a 1:1 value (not geographical) ratio. The values of the wetlands affected and the post-development wetlands are compared by ecological formulas. The Mitigation MOA, however, does not specify the use of a particular methodology. Thus, where the wetlands to be filled are already degraded, a replacement ratio of less than 1:1 may be permissible. As a general matter, enhancement of low quality wetlands is favored over the creation of new wetlands, since there is scientific doubt that wetland creation will be successful for the long term. The Corps will generally require an 85% success ratio and monitoring over three to five years for a mitigation plan. The Mitigation MOA expresses the preference for onsite or in-kind mitigation, rather than offsite or out-of- kind mitigation. Where offsite mitigation is necessary, the mitigation area should be located in the same watershed as the affected wetland.

For additional information on the mitigation provisions, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

Another mitigation approach is known as mitigation banking. Under this system, third parties create, restore, or enhance wetlands that would be credited toward future mitigation needs of permit applicants. The benefit of this approach is that large- scale wetlands are created or enhanced, and these larger areas are more likely to survive and thrive than small, piecemeal, newly created wetlands, which are often the results of onsite or immediately adjacent mitigation efforts.

Notably, the federal regulations require state approval, and in many states mitigation banks are not yet authorized.

For more information on the Corps permit process, including National Environmental Policy Act (NEPA) review, consultation with other federal agencies, and pubic interest review, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

Nationwide Permits

One way of avoiding the lengthy and complex individual permitting process is making use of nationwide permits (NWPs), where possible. These are the most common type of general permits issued by the Corps under authority provided by CWA Section 404(e). 31 There are currently 52 nationwide permits that have been enacted by the Corps. 32 Before it issues NWPs every five years, the Corps conducts an environmental review under NEPA, thereby obviating the need for site-specific assessments for individual NWP applications.

The Corps may allow different NWPs to be used for the same overall project. 33 In certain circumstances, an individual and nationwide permit may be used for components of the same overall project. 34 Thus, where a development site includes regulated wetlands (or potentially regulated wetlands), a first stage of inquiry should be whether NWPs could apply to the proposed activities.

All projects using NWPs must comport with certain general conditions, relating primarily to navigation, sedimentation and erosion, and aquatic concerns. In addition, there are specific criteria that apply to particular NWPs. Most NWPs do not require prior notice to the Corps; in these cases, if there is compliance with the general and any specific conditions, the permit is considered to have been already issued. However, confirmation can be sought from the Corps that the proposed activity is eligible for a nationwide permit. 35 This is often a prudent step, given the myriad conditions that must be met. A written confirmation is valid for a time period specified in the verification. 36

A number of NWPs, however, do require pre-construction notification and, in some circumstances, there must also be a wetlands delineation. For certain NWPs, this procedure entails notification of the proposed discharge to EPA, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service to afford these agencies an opportunity to comment on whether the activity should be deemed eligible for a nationwide permit or whether an individual permit should be required.

The Corps’ nationwide permit provisions provide for the inclusion of mitigation as part of a request for confirmation that a proposed activity meets the applicable criteria. 37 It is not unusual, particularly for activities that necessitate pre-construction notification to the Corps and other federal agencies, to incorporate mitigation at appropriate ratios to diminish the potential that an individual permit would be required.

The individual states must issue water quality certifications for a nationwide permit to be valid in that state. 38 Similarly, there must be a state consistency determination for NWPs in coastal zone states. 39 Through the Section 401 certification or the coastal zone consistency process, states may impose additional conditions upon the issuance of a nationwide permit. If a state denies certification or consistency, an individual certification or consistency determination for the proposed activity is a prerequisite for a valid use of the NWP. 40 In addition, individual Corps districts can add conditions that are based on local circumstances and experience.

For information on nationwide permits, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

Enforcement of Federal Wetlands Regulations

The Corps and EPA possess independent enforcement authority under the CWA. They also have a variety of administrative and judicial enforcement options from which to pick and choose. In an effort to coordinate and achieve more effective enforcement, the agencies entered into an MOA on Enforcement in January 1989, which allocates enforcement responsibilities. 41 In general, the Corps, because of its greater field resources, conducts initial investigations. If a case involves a permit violation, the Corps generally retains the matter. EPA concentrates on unpermitted discharges, as well as problem and special cases. The declination of one agency to enforce does not preclude the other from moving forward. Nor does the Enforcement MOA give any rights or defenses to putative defendants.

Parties Liable for Prohibited Activities

The CWA, like many other environmental statutes, imposes obligations on persons. The CWA defines this term broadly, to sweep in, among others, individuals, various business organizations, and governmental entities. 42 In addition, EPA regulations include agents or employees of any person. 43 Any person responsible for the illegal activity may be the subject of an administrative or judicial enforcement action. The key inquiry is whether a particular person was responsible for, or exercised control over, the illegal activities.

In contracting with partners or contractors that have primary control over a development and obtaining necessary permits, property owners or joint venturers are best advised to include indemnities for violations of law that are expansive enough to include CWA violations.

Administrative Enforcement

Both EPA and the Corps are authorized to issue orders to violators directing them to cease illegal activities and/or undertake remedial action. EPA may issue orders relating to noncompliance with the CWA (i.e., filling without a permit) and violations of a state-issued permit (where the Section 404 program has been delegated to a state). 44 The Corps can issue orders with respect to noncompliance with Section 404 and permit violations. 45 EPA issues administrative orders while the Corps issues cease-and-desist orders; the substantive results are the same.

If the violation involves an ongoing project, the violator is generally ordered to halt the illegal activity. The order not only prohibits work in wetlands, but can enjoin work on the entirety of a project, pending final resolution of the matter. 46 The initial order will frequently direct removal of the offending fill and restoration of the affected area to the prior status. Removal of a limited amount of fill may be allowed where that would bring the activity within the ambit of a nationwide permit. The Corps sometimes allows the applicant to apply for an after-the-fact permit, while the fill remains in place during the pendency of permit review. 47 If the after-the-fact permit is denied, restoration of the illegally filled area may be required.

For more information on administrative penalties, please see the full practice note, Wetlands Regulations: Considerations for Project Developers, in Lexis Practice Advisor.

Civil Judicial Enforcement

Judicial enforcement actions referred from either EPA or the Corps may seek preliminary or permanent injunctive relief, including restoration. 48 The government may also seek penalties, which may run as high as $53,484 per day per violation. 49 The CWA does not specify a statute of limitations for a civil enforcement action. Consequently, the courts have generally applied the five-year limitation for civil penalty actions. 50 However, actions for injunctive relief (because the offending fill has not been removed) are likely to be found not subject to the statute of limitations. 51

The government must prove the existence of wetlands by a preponderance of the evidence. 52 There is a right to a jury trial on the issue of liability, but not on the issue of relief (either injunctive relief or penalties). 53 Defenses in a judicial enforcement are quite limited, as the CWA is a strict liability statute. 54 Thus, intent is not necessary to find a violation of Section 404. The Act itself articulates no defenses and governmental estoppel and similar arguments have met little success. 55 As a practical matter, asserted defenses are generally insufficient to defeat an enforcement action but may be helpful in reducing or ameliorating the relief and/or penalty imposed.

The courts have not hesitated to impose temporary restraining orders or preliminary injunctions to halt illegal filling. 56 The judiciary has commonly required restoration of the affected wetlands, unless there is some persuasive reason that such relief is infeasible. 57 In many cases, additional mitigation, such as dedication of property, has been ordered. 58

Penalties for violation of Section 404 may be severe. In one case, a national development company was ordered to pay $170,000 in penalties, donate 11 acres (valued at $850,000) to a local park, and create and enhance 22 acres of wetlands for illegal filling wetlands during construction of a shopping mall. 59 In another case, several cranberry growers were ordered by a federal court to pay a $75,000 civil fine and undertake a wetlands restoration project estimated to cost $1.1 million for filling and altering wetlands without obtaining permits from the Corps. 60 In another matter, the illegal filling of wetlands near the Gulf of Mexico resulted in a negotiated settlement including nearly $2,000,000 in a civil penalty, restoration costs of over $100,000, and a mitigation program costing approximately $1,000,000. 61 A consent decree to settle a civil enforcement case required the defendant to pay $1.15 million to resolve allegations that it filled 70 acres of federally regulated wetlands. 62 Penalties may be enhanced if the defendant ignores compliance orders and otherwise attempts to thwart enforcement of the CWA.

The judicial penalty factors articulated in the Act are quite similar to those for administrative proceedings. 63 EPA and the courts also utilize the agency’s penalty policy in judicial enforcement proceedings. The district courts possess broad discretion in imposing penalties, and the courts of appeal are loath to second-guess the lower courts. 64 The judiciary has not been reluctant to impose substantial penalties where warranted by the circumstances. 65

Citizen Suits

Section 505 of the CWA authorizes citizen suits against any person alleged to be in violation of the Act. 66 A 2012 opinion by the U.S. Court of Appeals for the Fifth Circuit held that the CWA does not allow citizen suits over violations of a Section 404 permit. In Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356 (5th Cir. 2012), an environmental group sued the acting director of the Atchafalaya Basin Program, alleging that he had violated the conditions of a Section 404 permit issued by the Corps. The Fifth Circuit reviewed Section 505 of the CWA and determined that, while it expressly allows citizen suits to enforce the conditions of permits issued under Section 402 of the Act, it lacks any provision allowing citizen suits to enforce the conditions of permits issued under Section 404 of the Act. The Court concluded that Congress had intended to leave enforcement of Section 404 permits to the Corps. If other courts follow the Atchafalaya Basinkeeper decision, citizen suits alleging illegal discharges of fill material may be restricted to allegations of discharge without a permit; once the discharger has obtained a Section 404 permit, citizen suits alleging discharges of fill in violation of that permit would not be available.

Criminal Enforcement

The government may also prosecute criminally violations of Section 404 and seek penalties and/or imprisonment. 67 The Act provides separate provisions for negligent versus knowing violations. The former encompasses fines that range from $2,500 to $25,000 per day for each violation and imprisonment of up to one year. Knowing violations entail fines ranging from $5,000 to $50,000 per day per violation and imprisonment of up to three years. Both the permissible fines and penalties increase for multiples violators.

Prosecutions for violations of Section 404 have yielded imposing results. For example, in United States v. Ellen, 961 F.2d 462 (4th Cir. 1992), cert. denied, 506 U.S. 875 (1992), the illegal filling of wetlands resulted in a six-month prison sentence for the project manager. The filling of approximately 14 acres of wetlands in spite of governmental warnings and cease-and-desist orders yielded a three-year prison term and imposition of a fine of over $200,000. 68 The negligent filling of over 85 acres of wetlands on the eastern shores of Chesapeake Bay in Maryland, exacerbated by repeated flouting of government orders, was punished by a $2 million penalty and 18 months’ probation in United States v. Jones, No. 90-216 (D. Md. May 25, 1990). A developer who filled in 12 acres of wetlands and diverted a stream to fill in ponds on the property without a permit was sentenced to 33 months in prison after violating probation. 69 A developer, his daughter, and an engineer were sentenced to a cumulative 23 years and 6 months in prison, 9 years of supervised release, and were required to pay $54,900 in fines and special assessments in United States v. Lucas, Crim. No. 1:04-cr-00060 (S.D. Miss. Dec. 21, 2005). The developer disturbed 2,600 acres of wetlands in the construction of a housing development, and then sold homes to over 600 low- and middle-income families, who subsequently suffered leaks and sewage problems. The two corporations involved in the development were fined $5.3 million dollars. Although subsequently reversed, in United States v. Wilson, No. AW0390 (D. Md. Feb. 29, 1996), rev’d, 133 F.3d 251 (4th Cir. 1997), a real estate developer was convicted by a jury; he was sentenced to 21 months in jail and fined $1 million. His company was fined $2 million. And the court directed restoration of the illegally filled wetlands. In one unusual situation, a former manager in Delaware’s natural resources agency was sentenced to six months in prison and two years’ probation for regularly directing an agency employee to discharge contaminated wastewater into wetlands. 70

The construction of a natural gas pipeline from the Canadian border of New York to Long Island in violation of Corps permit conditions resulted in substantial penalties paid by the Iroquois Pipeline Operating Company as part of settlement of felony charges: $18 million to the federal government and $4 million to the state. As part of the settlement, four company officials pled guilty to misdemeanor violations of the CWA. 71

Please see the State and Municipal Regulation of Wetlands section within the full practice note, Wetlands Regulations: Considerations for Project Developers, for information regarding local wetlands regulations and ordinances.

To read the complete practice note on Wetlands Regulations: Considerations for Project Developers, please visit Lexis Practice Advisor.


Mark A. Chertok is a principal of Sive, Paget & Riesel P.C. He has been active in environmental and land use counseling, permitting, enforcement, and litigation, with an emphasis on waterfront projects, for more than 35 years. His experience spans a broad spectrum of substantive areas, including environmental impact statement counseling and litigation under the NEPA, the New York State Environmental Quality Review Act and City Environmental Quality Review, wetlands and water quality permitting under the Clean Water Act and state counterparts, coastal zone management, land use and zoning, and historic preservation, major transportation projects, air quality and climate change issues under the Clean Air Act, hazardous substances remediation and litigation under the Comprehensive Environmental Response, Compensation and Liability Act, remediation under the New York State Brownfield Cleanup Program, oil spill remediation under the New York State Navigation Law, and compliance review of Phase I and Phase II environmental assessments. Elizabeth Knauer is a principal of Sive, Paget & Riesel P.C. Elizabeth’s practice includes a variety of permitting, environmental review, and enforcement matters as well as environmental litigation. She advises clients and negotiates with agencies with respect to environmental impact assessment and litigation under the State Environmental Quality Review Act and the National Environmental Policy Act, permitting under the Clean Water Act and Rivers and Harbors Act and state counterparts for work in wetlands and surface waters, and environmental remediation. She frequently defends land use and other determinations made by municipal and state agencies when legal challenges are filed on environmental grounds. Elizabeth’s broad litigation experience also includes matters relating to environmental permitting standards, wetlands jurisdiction, environmental contamination, administrative law, and contractual provisions related to environmental conditions.


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1. Dahl, T.E., U.S. Dep’t of the Interior, Fish and Wildlife Service, Status and Trends of Wetlands in the Conterminous United States 2004 to 2009 (2011). 2.See M. Holloway, High and Dry: New Wetlands Policy Is a Political Quagmire, Scientific American, Dec. 1991, at 20. 3. 33 U.S.C.S. § 1251 et seq. 4. 33 U.S.C.S. § 1344(a); 33 U.S.C.S. § 1362(7). See also 33 C.F.R. § 323.1. 5. 33 C.F.R. § 328.3(a). 6. 33 C.F.R. § 328.3(a)(1). 7. Rapanos v. United States, 547 U.S. 716 (2006); see also 33 C.F.R. § 328.3(a), (c). 8. 33 C.F.R. § 328.3(e); Exec. Order No. 13778. 9. 33 C.F.R. § 328.3(c)(4). 10.See http://wetland-plants.usace.army.mil/nwpl_static/home/home.html. 11. The Corps has a Wetland Delineation Manual, including regional supplements, for use by agency staff and private professionals in delineating wetlands, which are available at http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/. 12. 33 C.F.R. § 328.3(b)(2). 13. 33 C.F.R. § 323.2(c). 14. 33 C.F.R. § 323.2(e)(1); 40 C.F.R. § 232.2. 15. 33 C.F.R. § 323.2(e)(2). 16. 33 C.F.R. § 323.2(d)(2). 17. 33 C.F.R. § 323.2(d)(3). 18. 33 C.F.R. § 323.3(c). 19. 33 U.S.C.S. § 1344(f). 20. 33 C.F.R. § 323.4(a)(1)(ii); 40 C.F.R. § 232.3(c)(1)(ii)(B). 21. 33 C.F.R. § 323.4(a)(3). 22. 33 C.F.R. § 323.4(a)(1). 23. 40 C.F.R. § 230.10(a). 24. 40 C.F.R. § 230.10(a)(3). 25. 40 C.F.R. § 230.10(c). 26. 40 C.F.R. §§ 230.10–230.61. 27. 40 C.F.R. §§ 230.50–230. 54. 28. 40 C.F.R. § 230.10(b). 29. Memorandum of Agreement Between the Department of the Army and EPA Concerning the Determination of Mitigation Under CWA Section 404(b) (Mitigation MOA). 30.See 33 C.F.R. § 320.4(r); 40 C.F.R. § 230>10. 31. 33 U.S.C.S. § 1344(e). 32. 82 FR 1860 (2017); see also https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/ for links to a list of the current NWPs and general and NWP-specific conditions. 33. 33 C.F.R. § 330.6(c). 34. 33 C.F.R. § 330.6(c), (d). 35. 33 C.F.R. § 336. 36. 33 C.F.R. § 330.6(a)(3)(ii). 37. 33 C.F.R. § 330.1(e)(3) and 33 C.F.R. Part 332. 38.33 C.F.R. § 330.4(c). 39. 33 C.F.R. § 330.4(d). 40. See RGL 92-04 (click on the year “1992”), Section 401 Water Quality Certification and Coastal Zone Management Act Conditions for Nationwide Permits. 41. Memorandum of Agreement between the Department of the Army and EPA Concerning Federal Enforcement for the Section 404 Program of the CWA (1989) (Enforcement MOA). 42. 33 U.S.C.S. § 1362(5). 43. 40 C.F.R. § 232.2. 44. 33 U.S.C.S. § 1319(a)(3). 45. 33 U.S.C.S. § 1344(s)(1). 46. 33 C.F.R. § 326.3(c). 47. 33 C.F.R. § 326.3(e). 48. 33 U.S.C.S. § 1319(b); U.S. v. Pozsgai, 999 F.2d 719, 736 (3d Cir. 1993), reh’g denied, cert. denied, 114 S. Ct. 1052 (1994). 49. 33 U.S.C.S. § 1319(d); 40 C.F.R. 14. 50. 28 U.S.C.S. § 2462. See, e.g., Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440 (D. Md. 1985). 51.See United States v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998); United States v. Hallmark Constr. Co., 14 F. Supp. 2d 1065, 1077 (N.D. Ill. 1998). 52. Stoeco Dev., Ltd. v. Dep’t of Army Corps of Eng’rs, 792 F. Supp. 339 (D.N.J. 1992). 53. Tull v. United States, 481 U.S. 412 (1987). 54.See, e.g., United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979). 55.See, e.g., United States v. Boccanfuso, 882 F.2d 666 (2d Cir. 1989). 56.See, e.g., United States v. Smith, 1998 U.S. App. LEXIS 12969 (4th Cir. June 18, 1998), cert. denied, 525 U.S. 1008 (1998); United States v. Bayshore Assocs., Inc., 934 F.2d 1391 (6th Cir. 1991); United States v. Ciampitti, 583 F. Supp. 483 (D.N.J. 1984). 57.See, e.g., United States v. Gallo Glass Co., No. C01-3350 JL (N.D. Cal. Nov. 8, 2001); United States v. Robinson, 570 F. Supp. 1157 (M.D. Fla. 1983); United States v. Weisman, 489 F. Supp. 1331 (M.D. Fla. 1980). 58.See, e.g., Pozsgai, 999 F.2d 719; United States v. Reuth Dev. Co., No. 2:96CV540-JM (N.D. Ind. Oct. 23, 1998); United States v. Key West Towers, Inc., 720 F. Supp. 963 (S.D. Fla. 1989). 59. United States v. Bridgeview Joint Venture, No. Civ. 94-C-3184 (N.D. Ill. Feb. 26, 1996). 60. United States v. Johnson, No. CA-99-12465 (D. Mass. Jan. 13, 2005). 61. United States v. Westinghouse Bayside Cmtys., Inc., No. 93-10-Civ. FTM-99 (M.D. Fla. 1993). 62. United States v. Adams Bros. Farming, Inc., No. CIV 00-07409 (C.D. Cal. Mar. 2, 2005). 63. Compare 33 U.S.C.S. § 1319(d) (judicial), with 33 U.S.C.S. § 1319(g)(3) and 33 U.S.C.S. § 1344(s)(4) (administrative). 64.See United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166, 1183 (D. Mass. 1986), aff’d, 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988); Weiszmann v. Dist. Eng’r, U. S. Army Corps of Eng’rs, 526 F.2d 1302, 1306 (5th Cir. 1976). 65.See, e.g., Tull, 481 U.S. 412 ($75,000 in penalties plus restoration of property); Cumberland Farms, 647 F. Supp. at 1183 ($540,000 penalty, with $390,000 suspended upon adequate restoration). 66. 33 U.S.C.S. § 1365(a)(1), (f). 67. 33 U.S.C.S. § 1319(c). 68.SeePozsgai, 999 F.2d at 723. 69. United States v. Phillips, 356 F.3d 1086 (9th Cir. 2004). 70. United States v. Daisey, No. 04-CR-134 (D. Del. Apr. 28, 2005). 71.See United States v. Mango, 1997 U.S. Dist. LEXIS 6145 (N.D.N.Y. May 1, 1997).