Dear David,

I read the article at the link you provided that was published by the San Francisco Chronicle, and it said:

“…California also had the dubious distinction of having the most large-scale violations - or "exceedances" - of Clean Water Act permits of any state. The large-scale violations are those that exceed the permitted level by at least 500 percent…”

To blame our President for California’s environmental problems is erroneous and such groundless accusations are indicative of Bush Derangement Syndrome (BDS).

In California, both carbon dioxide and ordinary sand are considered “pollutants” and when storm water contains these pollutants then this is considered a large-scale violation of the Clean Water Act. As previously noted on this forum, merely driving a car to the grocery store without a Clean Water Act permit could be considered a violation in California.

With all due respect, it is not accurate to blame President Bush for this problem, and it is not appropriate to implore others to “get a rope.”

This message has been edited. Last edited by: Johnny Stevens,

"Somebody get a rope." What does that mean? Surely, David does not mean that all is lost and it's time to drink the kool-aid? Surely, not. If so, we gotta buck that boy up!

Oh, my! He's not actually suggesting....no, he couldn't be.

George H.W. Bush (41) threw the "no net loss" line into his 1988 presidential campaign. I think it was right after he observed that the caribou were making love "up-against" the Alaska pipeline. The "no net loss" concept, nonetheless, became the stated policy of the EPA under Bush(41) and Clinton. But that was a national goal - no net loss of wetlands on the national balance sheet. It was not intended that each 404 permittee achieve the goal, individually. The individual permittee is the subject of the Corps' 404 regulatory program. To impose such a requirement on the individual permittee, there needs to be some law or regulation behind it. I'd just like to know what that law or regulation was (before April '08)?

This message has been edited. Last edited by: Matt Reed,

Not to sound flippant here but as to the question “But wouldn't you like to know from where the federal government takes its legal authority to "FORCE" developers to provide compensation?", I would have to say that it’s not a pressing issue for me to know what some “others” believe is or isn’t the basis for mitigation. Ultimately, what I (and more importantly my client’s) want to know is:
- is it required?
- how often?
- in what manner?
- and at what cost to the project?

Given that the agencies and, most importantly, the courts, have accepted mitigation requirements, my client’s are much more often interested in getting thru the process fast, not worrying about a minor percentage of their project costs. After all, a say, half a billion dollar project having perhaps 100k more in costs (that they generally expected in their project pro forma) is only 0.02% of their project budget. They’ve got millions of dollars being financed, they need to have the project started soon so that they can turn revenue soon, so that they can pay off their bonds soon…so what’s a few more bucks if the system works quicker.

Which is precisely why the concept of banking is important AND of value to the marketplace. Seems to me the thread originated in a question of hierarchies, not the tangential question of “why” mitigation even exists. I can guarantee you that “most” wetland professionals are less interested in debating legal precedent’s with a Corp staffer, and much more interested in trying to meet their client’s needs.

If I want to know “when or why” on mitigation requirements, I believe I can read the court cases and infer the evolution of mitigation on my own. Even if it “grew” from some obscure reading or a line of the CWA, I think the fact that it exists and has passed significant court muster is sufficient to say “let’s move on.”

Mr. Felton,

From the perspective of the "what do I need to do to get my permit?" partnership that has emerged between big government and "big development", my question is admittedly a bit esoteric, alas, even irrelevant. But maybe the little guy would still like to know where the federal government gets its authority. Then again, maybe not.

Seth Morganstern said;

"...I'd like to see a developer sue the Army Corps of Engineers over being forced to mitigate for impacts to streams, wetlands, salt water marsh, etc. obviously they won't win otherwise nobody would be mitigating..."

Dear Seth,
One of the main reasons that land owners litigate over jurisdiction is to avoid the mitigation process because of the associated expenses, project delays, and the "taking" issue.

Rapanos and Carabell successfully fought and avoided mitigation by challenging jurisdiction.

From a legal standpoint, it appears that jurisdiction is a better target for litigation than mitigation, and this may explain why the EPA has curtailed wetlands enforcement.

Absent jurisdiction, mitigation is not required and is not being enforced. This is the most significant obstacle to mitigation banking today. Mitigation banking may help with the process, but until the jurisdictional issue is settled, such "banking" is risky business.

quote:

Rapanos and Carabell successfully fought and avoided mitigation by challenging jurisdiction.

Really? They were able to proceed with their project and avoided mitigation. Interesting.

Judy,

Yep, Mr. Rapanos was able to proceed with his project and avoid mitigation. And all he had to do was win a landmark Supreme Court case against the Corps on jurisdiction to do it. Well, sorta. He sorta won.