CHAPTER 8 BRINGING EXISTING PROJECTS INTO COMPLIANCE WITH WETLAND REQUIREMENTS: GETTING OUT OF THE BOG

• Jurisdiction: United States

Wetland Issues in Resources Development
(Nov 1993)
CHAPTER 8
BRINGING EXISTING PROJECTS INTO COMPLIANCE WITH WETLAND REQUIREMENTS: GETTING OUT OF THE BOG
Zach C. Miller
Davis, Graham & Stubbs
Denver, Colorado
Steven Dougherty
ERO Resources Corporation
Denver, Colorado
John H. Morton
U.S. Army Corps of Engineers
Omaha, Nebraska

TABLE OF CONTENTS

SYNOPSIS

Page

I. INTRODUCTION

II. LEGAL AND ANALYTICAL FRAMEWORK AND ISSUES

A. DETERMINATION OF § 404 APPLICABILITY: CONFIRMING WHETHER YOU ARE (OR WILL BE) IN VIOLATION OF § 404

1. General Analysis: 6 KEY QUESTIONS to Answer About § 404 Applicability For Both Past and Proposed Future Activities

2. Special Analysis for PAST Activities

3. Current Rules Apply to Present Permitting, Enforcement and Remediation of Past Illegal Discharges

B. POTENTIAL ENFORCEMENT ACTIONS

1. Administrative Orders and Penalties

2. Judicial Civil Penalties and Injunctive Relief

3. Criminal Prosecution

4. Citizen Suits

C. STATUTE OF LIMITATIONS

1. Beginning of Limitations Period

2. Government Position on Injunctive Relief

D. AFTER-THE-FACT PERMITS

1. Standard Mechanism for Getting into Compliance

2. Current Regulations Govern Issuance of ATF Permits

3. Exception When "Initial Corrective Measures" Fully Restore Wetland

4. Completion of Remedial Work and Litigation Prerequisite to Application

5. 404(b)(1) Guidelines Apply

6. EPA Veto Power Applies

7. Broad COE Discretion

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8. Other Regulatory Requirements Apply

9. Consent Order Not Always Preclude Need for ATF Permit

III. TECHNICAL, POLICY AND PRACTICAL CONSIDERATIONS

A. CASE STUDY SHOWING PAST AND PRESENT DISCHARGES

1. At the Blackbird Pit

2. At the Foothills Mine

B. ISSUES AND CONSIDERATIONS DEMONSTRATED BY CASE STUDY

1. Wetland Identification

2. "Artificial" Wetlands

3. Liability for Prior Owners Or Activities

4. Potential Presence of Protected Species

5. Onsite and Offsite Restoration Or Replacement

6. Effect of Other Governmental Authorizations

7. Discharge to "Water of the U.S." Other Than Wetlands

8. Past and Ongoing Excavation Activities

9. Limitations on Enforcement For Past Violations

10. Reliance on NWPs As Authorization for Past Discharges

11. Drainage Of Wetlands

12. Past and Ongoing Discharges in Isolated or Above-Headwaters Wetlands

13. Activities Causing an Indirect or Unintended Discharge of Fill Material

14. Reliance on Mitigation Bank Credits for Past Discharges

IV. PRACTICE POINTERS: "DOING IT RIGHT" (SUGGESTED STEPS FOR IDENTIFYING AN OUT-OF-COMPLIANCE PROJECT AND GETTING IT BACK INTO COMPLIANCE WITH § 404)

A. IDENTIFY PRESENT AND POSSIBLE PAST AQUATIC RESOURCES

B. IDENTIFY POTENTIAL PAST ILLEGAL DISCHARGES

C. CONFIRM § 404 APPLICABILITY

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D. IDENTIFY POSSIBLE APPLICABLE NWPs

E. RESOLVE ANY UNCERTAINTY BY CONFERRING WITH EXPERT AND/OR COE

F. IF VIOLATION CONFIRMED, PROMPTLY CEASE ANY ILLEGAL ONGOING DISCHARGES

G. IDENTIFY PROPOSED REMEDIAL RESPONSE

H. PROMPTLY NOTIFY THE COE AND REQUEST PRE-PERMIT APPLICATION CONSULTATION

I. IF NECESSARY, APPLY FOR AN AFTER-THE-FACT PERMIT

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I. INTRODUCTION^*

Evaluating whether a proposed future project will trigger wetlands restrictions or requirements and determining how to avoid or comply with those requirements can be an extremely difficult task. Unfortunately, for past and ongoing projects, these difficulties are even greater. When addressing past activities, an investigator must ask and answer the same difficult questions facing the proponent of a new project, but those questions must be answered in the context of the status of the law and the facts at the time the past activity occurred. Because the law governing wetlands has evolved considerably over the last 20 years (as described in the preceding papers), this analysis can be quite complex. In addition, an investigator must often evaluate whether a site now wholly filled or transformed was technically a wetland under both the law and conditions in existence at the time of the past activity. Finally, if the investigator is legally responsible for the past activities, it is faced with potentially major civil and criminal liabilities and substantial restoration or replacement costs.

This paper outlines the major questions and considerations facing owners of past or ongoing projects who may be in violation of § 404 of the Clean Water Act (33 U.S.C. § 1344) or other wetlands requirements and suggests some steps to get an out-of-compliance project back into compliance. In Section II below we describe the central legal and analytical framework for determining whether a past or ongoing project may be in violation of § 404, the potential enforcement measures that could result, and the potential and procedures for permitting an already completed illegal discharge into a wetland. In Section III we describe a case study of a factual scenario involving past and ongoing discharges into wetlands at a sand and gravel mine and outline some of the technical, policy and practical considerations facing the current mine operator and related parties. Finally, in Section IV we list some recommended steps and measures that an operator of a past or ongoing operation potentially in violation of wetlands requirements should take to confirm its compliance status and, if necessary, to bring its project back into compliance.

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II. LEGAL AND ANALYTICAL FRAMEWORK AND ISSUES

A. DETERMINATION OF § 404 APPLICABILITY: CONFIRMING WHETHER YOU ARE (OR WILL BE) IN VIOLATION OF § 404

1. General Analysis: 6 KEY QUESTIONS to Answer About § 404 Applicability For Both Past and Proposed Future Activities:

a. Question #1: Is the AREA to be disturbed a regulated " wetland" or other "water of the U.S."?

• If not, § 404 does not apply and you are home free; if so, see #2.

• If in doubt, obtain a wetlands identification by a private consultant and/or the COE (good for 3 years).

b. Question #2: Does the proposed ACTIVITY constitute a " discharge of dredged or fill material"?

• If not, § 404 again not applicable and you may pass go; if so, see #3.

• Note: Broad expansion of definition of " discharge" to generally include excavation activities in August 1993.

• If in doubt, consult COE RGLs and/or an experienced environmental practitioner.

c. Question #3: Does the proposed discharge nominally qualify as EXEMPT from regulation under § 404?

• If so, you are free of all § 404 requirements, unless the COE applies the " recapture" provision of § 404(f)(2); see #4.

• If not exempt, the discharge is regulated under § 404; see #5.

• RGLs provide some guidance on the scope of certain exemptions (e.g., temporary roads for moving mining equipment).

d. Question #4: Is the otherwise Exempt Activity " RECAPTURED" under § 404(f)(2)?

• Note: Any otherwise exempt discharge is "recaptured" and required to have a permit if it is incidental to an

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activity whose purpose is to bring a water of the U.S. into a new use that impairs or reduces the flow, circulation or reach of navigable waters. 33 U.S.C. § 1344(f)(2). See also 33 C.F.R. § 323.4(c).

• If not "recaptured," § 404 nominally is not applicable; but note that "exempt" farm, forest and temporary mining roads must be constructed and maintained in accordance with COE best management practices ("BMPs") in order to qualify for the exemption. Id.

• If "recaptured," the discharge is regulated under § 404; see #5.

e. Question #5: Is the regulated discharge authorized under a NATIONWIDE OR OTHER GENERAL PERMIT?

• If not, you need an individual permit; see #6.

• Even if you do qualify for a NWP or other General Permit, in addition to compliance with the COE's BMPs and General Conditions, you may still be required:

— To give the Corps Predischarge Notification,

— To comply with site-specific Special Conditions,

— To comply with state- or region-specific Special Conditions,

OR

— In the Corps' discretion, to obtain an Individual Permit instead.

f. Question #6: Can you obtain an INDIVIDUAL PERMIT for the activity determined to be subject to § 404 requirements and, if so, under what restrictions, costs and delays?

• Can the proposed discharge be avoided (i.e., is there a "practicable alternative"); if not, can the impacts be minimized; can unavoidable impacts be replaced by compensatory mitigation?

• What exactly is the " project"? (define carefully)

— Is it " water dependent"?

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— Are different activities a " single and complete project"?

— Can any other, non-wetland areas reasonably fulfill project purposes?

• Can the discharge pass the COE's " public interest" review?

• Are other regulatory requirements, costs and delays potentially triggered?

— State 401 certification.

— NEPA, Endangered Species Act, Historic Preservation Act, etc.

— E.g., EIS for § 404 permit for Two Forks Dam cost $40 million and took over 5 years for a project now unlikely to be built.

• If an individual permit is NOT available for any reason, the proposed future activity may not proceed and must be reconfigured. In the case of a PAST discharge which has already occurred, see the following section.

2. Special Analysis for PAST Activities:

The analysis to confirm the applicability of § 404 to past activities involves the same basic analysis noted above. Because the § 404 Program has evolved over the last two decades, however, several of the above questions must be asked in the context of § 404 requirements in effect at the time of the discharge:

a. Was the AREA regulated at the time of the discharge?

(i) If not, § 404 did not apply and there is NO VIOLATION.

(ii) 1972 — Effective date of § 404 generally; October 18, 1972.

(iii) 1975 —

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