CHAPTER 7 "WETLANDS—ISSUES IN EXPLORATION, DEVELOPMENT AND PRODUCTION OPERATIONS"
| Jurisdiction | United States |
(Feb 1994)
"WETLANDS—ISSUES IN EXPLORATION, DEVELOPMENT AND PRODUCTION OPERATIONS"
Shareholder
Susan L. Hearne
Associate THOMPSON & KNIGHT, P.C.
Dallas, Texas 75201
TABLE OF CONTENTS
Page
A. INTRODUCTION
B. HISTORICAL PERCEPTION OF WETLANDS
C. WHY A CHANGE IN HOW WETLANDS ARE PERCEIVED?
D. CONGRESSIONAL RESPONSE TO PUBLIC INTEREST IN WETLANDS PRESERVATION
E. REGULATORY IMPLEMENTATION OF THE CONGRESSIONAL RESPONSE
1. What is a Wetland?
a. Hydrophytic Vegetation
b. Hydric Soils
c. Wetland Hydrology
2. What is a "Water of the United States?"
3. What is a Discharge of a "Pollutant?"
F. PROCESS FOR WORKING OR FILLING IN A WETLAND
1. Section 404 Individual Permits
2. Nationwide and General Permits
3. State Permits
G. ENFORCEMENT—EFFECT OF DISTURBING WETLANDS WITHOUT APPROPRIATE AUTHORIZATION
1. Administrative Enforcement
2. Civil Judicial Enforcement
3. Criminal Enforcement
H. POSSIBLE REMEDIES FOR GOVERNMENTAL RESTRICTIONS ON USE OF WETLANDS
1. Takings Issues
2. 1983 Actions
I. CLINTON ADMINISTRATION PROPOSALS
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A. INTRODUCTION
It is my intent that this paper provide you with a succinct yet thorough introduction into the federal regulation of "wetlands." Perhaps no other area of environmental law triggers as much confusion or concern. In large part, this reaction is a function of the fact that the federal government's regulation of wetlands is not tied to controlling "pollution", but instead seeks to limit the use of private property—at the expense of the individual landowner—for the benefit of the public at large.
The development of governmentally required preservation of wetlands is to a large degree intended to prevent problems associated with private use of a common resource described in G. Hardin "The Tragedy of the Commons." 162 Science 1243 (Dec. 13, 1968). The central example of that article focuses on the problems that result when there is no centralized control of the use of an open pasture. In such a situation, it is in the best individual economic interest of each herdsman to graze as many cattle as possible in the common pasture. Such an arrangement will generally work reasonably well until social stability eliminates other factors such as war, poaching and disease as limiting factors in the use of the common pasture. At that point, there is no "outside" limiting force and everyone's use of the commons involves internalizing all of the benefits but not all of the costs. In that circumstance, it is only a matter of time before the resource will be overused to the ultimate detriment of all concerned. Conceptually, the use of wetlands can be viewed in much the same way. Namely, the resource can be viewed as having public benefits, the loss of which through individual use is small, but when these small individual losses are aggregated the loss to the public is significant. Recognition of this similarity has in part been responsible for the development of federal efforts to preserve wetlands.
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B. HISTORICAL PERCEPTION OF WETLANDS
Wetlands have been known by many names—"swamps", "bogs" or "marshes". Wetlands have been blamed for contaminating water sources and a host of maladies, including malarial and malignant fever.1 Moreover, in the past, wetlands were not viewed as a particularly productive use of property. In fact, federal policy formerly encouraged the destruction of wetlands through drainage and filling.2 For instance, Congress in the 1850's in an effort to provide land to states to encourage railroad construction enacted the "Swamp Wetlands Acts," which transferred over 65,000,000 acres of federal wetlands to the states for draining and reclamation.3 For many years, the Farm Credit System provided farmers with loans at a low interest rate for the specific purpose of making wetland reclamation affordable. Until 1986, the cost of converting wetlands to farmlands was supported through various tax breaks.
The last thirty years have seen a dramatic shift in the public's perception of wetlands. A relatively clear break with past views occurred when the Fish and Wildlife Coordination Act was adopted in 1958.4 This law required, for the first time, that the Corps of Engineers (the "Corps") take into consideration environmental effects before issuing a permit to conduct work in "wetlands".5 In the past, in exercising its authority under the River and Harbors Act of 1899,6 the Corps was only
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concerned with prohibiting obstructions to navigation.7 A more stable legislative foundation for the federal government's concerns was established in the Federal Water Pollution Control Act Amendments of 1972,8 which established a specific permitting program, separate and apart from permits required under the Rivers and Harbors Act, for controlling discharge of dredged or fill material into various water bodies including wetlands.
C. WHY A CHANGE IN HOW WETLANDS ARE PERCEIVED?
Detailed analysis of why the public's view of wetlands shifted from non-productive disease-causing land to a highly prized environmental resource (at least to the extent that Congressional action is an accurate indicator of public perception) is beyond the scope of this paper. Certain general conclusions can be made, however. In large measure, the public's increasing concern about wetlands preservation may positively correlate with the "loss of the frontier," and a significant overall improvement in the country's standard of living following World War II. It has only been 125 years since the first trans-continental railroad was completed in this country. Recognizing that natural resources may be limited is difficult when the available resources seem limitless. Environmental concerns also tend to take a back seat to economic problems and immediate national security concerns. It is difficult for a society to be overly concerned about environmental issues during periods of great economic dislocation, such as the depression of 1930-1940, or when there are significant national defense concerns, such as during World War II. Therefore, an atmosphere conducive to concern about environmental issues did not truly exist in this country until the 1950's. Not surprisingly, it is during this period that the foundation for much of the environmental movement of the mid to late 1960's was established. Tracking any number of indicators of public perception
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during this time shows a growing concern about the non-reversibility of resources and the interdependence of man and the environment. Perhaps the most significant example being Rachel Carson's Silent Spring. In large measure then, Congressional concern about wetlands preservation can be seen as a response to public attitudes.
D. CONGRESSIONAL RESPONSE TO PUBLIC INTEREST IN WETLANDS PRESERVATION
There is little question but that during the adoption of the Federal Water Pollution Control Act Amendments of 1972, Congress explicitly recognized for the first time, that wetlands can be an environmentally and commercially valuable ecosystem. In particular, wetlands provide a habitat of high value for a variety of fish and wildlife. They can serve to purify water passing through them. They also function to store and dampen the flow of flood waters into adjacent streams and lakes. Of course, these effects are generally associated with wetlands of relatively large size such as the Everglades and river deltas. Interestingly, however, the CWA does not explicitly mention wetlands. These areas are described by the more general term "waters of the United States."
To protect wetlands the CWA provides for two different types of permitting programs — section 402 National Pollutant Discharge Elimination System ("NPDES") permits9 and section 404 dredge and fill permits.10 The NPDES permit program was established to generally govern water pollution from "end of pipe" industrial and municipal sources.11 The NPDES regulatory program is administered by the Environmental Protection Agency ("EPA"). The "404" program is the responsibility of the Corps of Engineers (the "Corps"), subject, however, to oversight by the EPA.
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Interestingly, section 404 when read literally has a narrow focus—regulation of "the discharge of dredged or fill material at specified disposal sites."12 It is, unfortunately, too late in the day to revisit whether these statutory terms were ever intended to have the broad interpretation adopted by the Corps in administering this program.
Both programs are triggered if, and only if, there is a "discharge" of a "pollutant" from a "point source" into "waters of the United States."13 As discussed below, finding whether these conditions exist with respect to a wetland poses difficult factual and legal questions.
E. REGULATORY IMPLEMENTATION OF THE CONGRESSIONAL RESPONSE
1. What is a Wetland?
As stated above, the CWA does not define or mention wetlands. The basic wetlands definitions are found in regulations issued by the EPA and the Corps under the authority of the CWA. In particular, the Corps defines a "wetland" as follows:
[T]hose 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.14
This definition describes three technical criteria that are used for making wetland determination: (1) hydrology — does water inundate or saturate "the soil"; (2) vegetation — are there plants present that
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"typically" survive in saturated soil; and (3) soil — can the ground accept water to allow "wetlands" vegetation.
The phrase, "under normal circumstances," allows the Corps to consider whether an unusual event has...
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