Koontz v. St. Johns River Water Management District: Will It Impact Mitigation Conditions in §404 Permits?

• Date: 01 October 2014

44 ELR 10886 ENVIRONMENTAL LAW REPORTER 10-2014

Koontz v. St. Johns

River Water

Management

District: Will It

Impact Mitigation

Conditions in

§404 Permits?

by Carys A. Arvidson

Carys A. Arvidson is a third-year law student at Tulane

University Law School. is Article won Honorable

Mention in the 2013-2014 Beveridge & Diamond

Constitutional Environmental Law Writing Competition.

Summary

Required mitigation of wetlands impacts is a manda-

tory feature of many Clean Water Act §404 permits.

In Koontz v. St. Johns River Water Management Dis-

trict, the Supreme Court held that government agen-

cies must show a relationship between a proposed

permit condition and the adverse environmental

eects that the condition proposes to mitigate. e

permit condition also must be proportional to the

scope of the proposed project regardless of whether

the permit condition is a demand for money or prop-

erty. Current permitting practices tend to identify the

nexus bet ween the permit conditions and to be pro-

portional. Still, to be prepared for future lawsuits by

property owners asserting their private property rights

under the Takings Clause of the Fifth Amendment,

existing compensatory mitigation guidelines should

be amended to set forth more strict guidelines on

how mitigation requirements are quantied and how

mitigation is measured against the proposed develop-

ment’s impact.

I. Introduction

Historically, wetlands have been viewed as wasted land,

which could only be put to productive use such as farm-

ing or development (industrial, commercial, or residential),

after draining and earth lling.1 As a result, over one-half

of the original 215 million acres of wetlands in the lower

48 states have been drained and converted to other uses.2

Only recently have the importance and value of wetlands

become evident. Wetlands provide benets that no other

ecosystem can provide.3 Wetlands provide necessary habi-

tats for a disproportionately high percentage of endangered

and threatened species; help with ood mitigation, storm

abatement, and aquifer recharge; maintain water and a ir

quality; provide opportunities for recreation and aesthetic

appreciation; and constitute a signicant factor in the global

cycles of nitrogen, sulfur, and carbon.4 e importance of

protecting wetlands is clear, yet governmental regulation

of wetlands is not so simple. Over 75% of wetlands in the

United States are privately owned5; as a result, environmen-

tal regulation comes into conict with fundamental con-

stitutional rights to private property and economic liberty.

e extent to which the government may regulate private

land use to enhance environmental objectives is limited by

the Takings Clause of the Fifth Amendment.6

Currently, no comprehensive national wetland law

exists. e primary vehicle for wetlands protection and reg-

ulation is Clean Water Act (CWA)7 §404, which imposes a

permitting requirement on development of property classi-

ed as wetlands.8 e U.S. A rmy Corps of Engineers (the

Corps) considers multiple factors when deciding whether

to issue a §404 permit, but most importa ntly, the Corps

weighs the potential environmental damage against the

proposed development’s benets and any eorts to mitigate

or oset potential loss of natural resource s. Section 404

has been construed to encompass a duty to mitig ate t he

impact of the proposed project, “not only through proper

management of the lling itself but also by compensating

1. J R, E L U P  M-

 540 (2004).

2. Id.

3. U.S. Environmental Protection Agency (EPA), Wetlands and People, http://

water.epa.gov/type/wetlands/people.cfm (last updated Mar. 6, 2012).

4. W J. M  J G. G, W 508-27 (2d ed.

1993).

5. U.S. EPA, Wetlands Protection, http://water.epa.gov/type/wetlands/protec-

tion.cfm (last updated Oct. 9, 2012).

6. P  C E L 267 (James R. May

ed., 2011).

7. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607. See also A’

 S W M, P   N W

S: M  I  L 49 (Jon A. Kusler et al.

eds., 1986) [hereinafter M  I].

8. M  I, supra note 7, at 49.

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