Interesting case with a rather entertaining
legal opinion by Judge Beistline of Anchorage.
(Especially the description of the Tanana River!)

Judge Beistline granted Great Northwest's summary judgement motion in June of 2010. The ACOE filed
an appeal to the Ninth Circuit, but VOLUNTARILY
DISMISSED it on Feb. 15, 2011. Is that unusual ?

Summary : Great Northwest (GNW) operates a gravel mine on the outskirts of Fairbanks, Alaska. A permit re-issued in March of 2007 contained a special condition that GNW could request a new JD pending Guidance on Rapanos.

GNW requested a new JD; the Corps affirmed jurisdiction based on combining GNW wetlands with wetlands actually adjacent to the Tanana
but separated from the GNW property by railroad berm and levee, thus avoiding need for a signifiant nexus finding, which was not done.

The Pacific Legal Foundation challenged the ACOE re: 'adjacency' and the district court agreed.,
ruling that GNW's wetlands are exempt from CWA jurisdiction.

Legal proceedings (hopefully) attached.

great-northwest-opinion_by_beistline.pdf (124 KB, 98 downloads) legal brief

Irene,
This case is good news and an important warning to wetlands practitioners who rely on the agencies for legal advice. This case demonstrates that the regulated public may rely on the US Supreme Court's definition of "adjacency" and not be bound by unofficial, imaginary and highly speculative "hydrology connections" which are concocted on case-by-case basis. Remember this simple rule; if it does not abut then it is not adjacent.

Johnny,

Excellent point. But we need to add a little Johnny Cochran rhyming: If the wetland doesn't abut, it doesn't make the cut!

quote:

imaginary and highly speculative "hydrology connections"

Balderdash!

Simply because the current legal system and/or those uneducated in wetland science and hydrology do not understand those hydrologic connections does not make them "imaginative" or "highly speculative".

Legally unrecognized? Absolutely. Invisible to the untrained eye? Definitely. Imaginary? Nonsense!

I agree with Joseph and might add that the SWS, as an organization of wetland experts, have a long record of support for the furthering conservation for even the most isolated of wetlands. There have even been whole issues of "Wetlands" dedicated to the subject. Any win for the Pacific Legal Foundation is a lost for the rest of us and just because our current laws allow this type of action, it doesn’t make it scientific sound.

Matt said:

"...If the wetland doesn't abut, it doesn't make the cut!..."

This is a great motto and a guiding light in these troubled times. This is worthy of the wetlands Hall of Fame.

I wish to recognize Irene as a wetlands warrior and nominate her as an honorary memember of the Brotherhood. Matt, would you kindly second this motion?

Hydrology connections will eventually be abandoned as the courts continue to crack-down on regulatory abuse.

Johnny,

Consider the motion seconded! Welcome, Irene!

David and Joseph? Get a clue! We're talking about the law, not science! Science is not the law! Law is not science! They're different and distinct! Each with a noble purpose. Not to be confused.

Wow, I am honored !

Thank you Matt & Johnny.

I feel like Rip Van Winkle re: wetlands issues,
since we purchased our property in Dec. of 1984,
cleared the 100 acres in March 1985 and then were not able to develop it further due to family issues. Returning to it 25 years later, it was quite a shock to find that our land was to be so heavily regulated.


Anyone who has followed my posts here can see
that wetland issues in Alaska are going to have
to be dealt with differently, it's clear that
the Corps cannot control the entire 43% of the
state that is currently classified as wetlands.

In the early 1990's, the State set up an 'Alaska Wetlands Task Force' to help the hapless private property owner, but it fell under the burea-cratic axe. Perhaps it's time to resurrect it ?

Specifically, our situation is all about whether
the proposed gravel pit property 'abuts' the slough (via relic underground stream channels)
or is just 'adjacent' (still separated by, at
the minimum, another 40 acre parcel). The Corps
stated on our JD that it 'abuts', but offered
no evidence other than reference to the relic
channels. This because they have not done and
probably do not have the resources to do a Significant Nexus Finding for the Salcha area.

We are arguing that the property is adjacent (at most) and that the slough may not be an RPW. It is most definitely NOT navigable.

We own and operate a bulk and bottled spring water delivery business, so are naturally very aware of the need to prevent groundwater contamination, as per Section 402 of the CWA.

But worry about the disruption of black spruce
and scrub willow vegetation ? Right . . . sure.
They are such rare species up here.

quote:

Get a clue! We're talking about the law, not science!

Get a clue? Matt do you even know where you are? Maybe I'm lost; did I type in the wrong address and end up at the Society of Wetland Lawyers or the Society of Landowners forum again? No? Then I'll continue to try to bring the focus back to science. Having environmental law not based science is a major issue, one being worked on by many organization including the Society of Wetland Scientist. This point has been expressed countless times by many others to only to be rebutted by Johnny and Matt (and I guess Irene now). I am confused how one becomes a wetland warrior by seeking to fill them or dig them up, wouldn’t that make her an Upland Warrior or Hole Warrior, by whatever. This forum has over time lost many of the wetland scientist contributors because no matter what we say our voices are drowned out and many have decided that we are merely wasting our breath; I’m starting to agree with them. Maybe we should all abandon it so it can be complete dominated by threads that advising landowners how best to avoid conservation efforts, then again why would I want my membership due used to host such a forum? This “not in my backyard” approach to wetland conservation wearing on me, let us envision a world the Johnny and Matt want for us, where landowners will self regulate and the evil EPA are sent packing. We don’t have to look to the future, but simply look to the past, where environmental abuse was wide spread and many states have lost much of their wetlands many well over 50%. (http://water.epa.gov/type/wetlands/images/usa.gif). To Irene, you will see from the map that Alaska has lost 0.1% of its wetland; I guess it’s the direct result from what you describe as “heavy regulation”. You mentioned Alaska is 43% wetlands, what percentage are you comfortable with it being reduced too? 30%, maybe 25%, let say 5% because we wouldn’t want to infringe on any landowner rights, the right to destroy your wetlands. I don’t mean to pick on you Irene, but your statement concerning groundwater and tree species conservation reflect a lack of understanding on the functions and values wetlands provide both for you and the community. Here are two simple graphics to explain the functions and values of wetlands. (http://water.usgs.gov/nwsum/WSP2425/images/fig50.gif) and (http://water.usgs.gov/nwsum/WSP2425/images/fig51.gif).
OK, I think I’ve wasted enough breath

David,

Obviously, science informs the making of environmental law. That's where SWS comes in. But once the law is made, it's the law! We make laws based on science and politics. We regulate according to the law. Why is this so hard to understand?

David,
While I can see your point about Johnny’s repetitive posts about wetland jurisdiction, THIS particular thread that Irene started is about jurisdictional law, not about science.

Your attitude that all wetlands should be conserved and wetland consultants should not help people “avoid conservation efforts”. This means that the law will be administered unequally. Small landowners such as Irene will be subject to a different standard compared to wealthy developers who hire good attorneys who can force the Corps to follow the law.

I think it is a matter of fairness. If Irene’s wetlands are not regulated under the law, she should not be forced to treat them as such. A large developer would have the resources to fight for the proper application of the law and would be free to dig up the un-regulated wetlands. Irene, as the little guy, gets screwed.

David, your problem is with the law. The Clean Water Act was not written to regulate all wetlands. If it was, we wouldn’t be arguing this point.

That being said, perhaps you can convince Irene that her wetlands are valuable enough to warrant conserving whether or not they are regulated.

Matt,
Nothing is misunderstood. You are correct laws are based on science and politics, but clearly you are advocating for the political concerns of environmental laws, and I am juxtaposed from you advocating for greater scientific influence in the interpretation of environmental laws. Congress has failed to keep pace when updating the CWA thus I think it needs to be changed and expanded increasing it scope. Hopefully, you recognize that laws are open to differences in interpretation and that the laws change although the process is quite long and difficult. I find it ridiculous to say once a law is passed there shouldn’t be an effort to inform on its implementation.

Andrew
The purpose of my post was to provide counter balance to the high-fiveing, congratulatory atmosphere that existed prior to Joseph W. Dixon’s post. The harsh tone was likely based Matt implying that we were clueless, but I digress. As stated above I know all too well the CWA does not protect all wetlands. Personally and professionally, I think that wetlands need more protection but I am not a complete conservationist, I know that development of wetland areas is necessary in certain situations. I have often advised client that certain wetlands do not fall under Corp jurisdiction but I also try to convince them to minimize the impact to all wetlands although they are not legally obligated to do so. This thread was started to highlight the efforts of the Pacific Legal Foundation and Great Northwest, neither a small landowner. I know that small developers can get hosed, I hope Irene can find a good consultant that will: give her a good deal, inform her where and when the regulator has overstepped and can develop a plan of action that allows her get her project complete, while minimizing the impact to her wetlands.

David,

So a landowner needs to hire a scientist to know whether his wetlands are adjacent? Is that any way to run a country?

Regarding honorary membership in the Brotherhood, Irene said;

"...Wow, I am honored !..."

Dear Irene,
Congratulations. Over the years, the Botherhood has contributed to the advancement of integrity and fairness in our Nation's wetlands regulatory program through the resources of this forum and informed commentary from ordinary citizens like yourself who own and use land to make an honest living. Our public commentary, professional opinions, and reasonable discussion informs the courts and influences wetlands policy and case law.

Since June 2006, the Brotherhood has struggled mightly to understand, explain and defend the intricate achievements of the Rapanos decision against an onslaught of distortion, confusion, misapplication, and in some cases - malice, from otherwise well-meaning people and goverment agencies who are philosophicaly and politically opposed to the legal protection afforded landowners under Rapanos. Our recent progress in the courts along with your induction into the Brotherhood is a cause for celebration, yet this occasion is met with consternation by our friends on the other side.

Our friends often call for Congress to pass new legislation, but this has not happened and is not likely in the foreseeable future. Our friends have also appealed to government agencies to promulgate new regulations, but this has not happened. Instead, almost all wetlands policy and law now comes from federal courts who continue to probe the intricacies of Rapanos and are illumined by the expertise and insight offered for free as a public service on this illustrious forum. The Brotherhood appreciates the contributions of our friends on the other side and we recognize that this is a vital factor in our success.

Have a good day

David,

My husband and I have been hay farming here in Interior Alaska for the last 26 years (actually,
much longer for him, as he grew up on a potato farm in Fairbanks). Trust me, we have a fairly
good idea of what our soils are, what they are
capable of, and the role played by groundwater
and vegetation. And, as stated upthread, we
also own/operate a spring water delivery business, including managing the spring itself.

We have a very good idea of what the hydrologic
cycle is all about. Have you looked at my previous posts ? Please realize that conditions up here ARE different. For starters, we need
to be able to classify wetlands according to
function and relative importance. Why has the
Corps itself not been instrumental in doing so ?
The one-size-fits-all system is not working.

(Also, due to our very cold soils and short growing season, wetlands indicators can persist
for many years in soils which have otherwise
thawed and drained. How to deal with this ?)

And yes, we are definitely doing all we can to minimize 'impact to wetlands' as per attached
response to item #23 of our permit application.
(The local regulatory office has advised us that they have no further interest in the cleared portion of the property not being developed into a gravel pit, as long as it is used strictly for
farming activities.)

This was done on my own, no wetlands consult
involved. Sort of my 'wetlands crash course'
term paper. We cannot afford help at this point.

Just think of all the infrastructure which you
take for granted, which we are being denied due
to the current regulatory environment. (As in, OMG, .1% of Alaska's wetlands have been developed ! We better put a stop to that !)

The biggest problem I see from my amateur perch,
is that the Corps refuses to acknowledge that
succession happens. For natural and/or manmade
reasons. Alaska is changing and will continue to
change. We have had literally tens of millions of acres burn over the last several summers.
Probably a lot of that was wetlands. They may revegetate very differently, due to climate change. But, like the rest of the military,
the Corps seems stuck in still fighting the last war, not whatever is coming. (Hopefully, peace!)

ACOE_permit_item__23.pages (164 KB, 99 downloads) permit item #23

Ok, I surrender, I yield to the Brotherhood. Irene, if I were not thousands of miles away I would take your case up pro-bono. You are right it’s a different world up there and in full disclosure my firm works on designing and building the infrastructure that the state lacks. I am informed by someone that works in the your state that it is wrong to treat the whole state of Alaska as a nature preserve just because the lower 48 has damaged much of their wetlands. I wish you all the best.

Thanks for the vote of confidence, David.

I'm not clear on whether you are working on
infrastructure for LA or AK ? If the latter,
I hope you can come visit some time.

Re: vegetation, you may not know that, due to
their very high pitch content, the ubiquitous
wetland black spruce are called "Mother Nature's
Matchsticks". They are the prime wildfire fuel.
Almost (but not all) wildfires are started by
lightning strikes. Burn, wetlands, burn !

Right now it's still very cold. You might like
the great photos at www.icealaska.com, we have
just started our international ice carving
championship. Lovely and amazing. And a great
use for wetlands -- since they are frozen solid
for the entire time the Ice Art Park is open !

I am working in LA, but the environmental consulting firm I work for is largest on the planet. I don’t get to visit but since we have 23,500 employees on 6 continents, it easy enough to call one of the Alaskan offices to talk to the staff there, to see what they are working on and what they are working with. I had heard of flammability potential of the black spruce. I am a botanist by training, and I studied fire ecology in Oklahoma two years, so I understand that regular burning in wetland are normal and quite beneficial to the ecosystem, so indeed “burn wetlands burn”. The problem in other areas of the US is that fires are not allowed to burn regularly and the flammable species build up in the system so when a lightning strike finally does occur the fires are so large they can damage the ecosystem and can be dangerous to property and people. On a side note, I can’t wait until I get to see Alaska; I enjoy watching the many TV shows like Flying Wild Alaska, which explore a few aspects of your unique state.
Dave

We lost a very nice cabin (the nicest part was that somebody else had built it instead of us !)
to the Wolf Creek Fire in 2004. That fire burned
700,000 acres before merging with the Boundary
Fire; total of just those two fires was almost
2 million acres burned. The Wolf Creek Fire very
nearly burned down Chena Hot Springs Resort, our
favorite getaway (our cabin was 1&1/2 miles from resort). Our property (not the Eielson property)
was a mix of white and black spruce, it is coming back in grasslands and paper birch.
Probably because the deep moss layer is gone.

If you go to Google Earth and put in West Fork Chena River, you can see an active fire burning in the same area two years earlier, the West Fork Fire (caused by an untended burn barrel); that fire was actively fought but still burned 25,000 acres. Very few fought the Wolf Creek Fire because all available resources were working on the Boundary Fire, which threatened Fairbanks. Forest fires have definitely been
much worse in the last decade than previously.
(At least since I moved here in 1972).

My philosophical soap box:
Wetland laws are a bit like taxes. Both penalize individuals for the good of the larger community. Tax money is supposed to go for defense, roads, law and order, education, etc. Maintaining wetlands maintains water quality and ecosystem integrity.

The tax code is quite complicated. Many people hire experts to help them with their taxes to minimize the impact taxes have on them, ie. minimize the amount they have to pay the government. The law says that only some money is taxable, and it is up to each citizen to figure it out and minimize their own tax burden, even if they have to hire someone to figure it out for them.

Similarly, wetland laws are also complicated. Citizens can try to figure it out the laws for themselves, or hire an expert to help them minimize the impact of wetland laws.

For both taxes and wetlands, the government has little incentive to help people figure out how to minimize the law’s impact.

To Irene (and Matt), consider hiring both a tax expert and a wetland expert. Neither expert is required, but depending on how complicated your taxes or wetland issues are, the costs might be out weighed by the benefits. Wetland delineating, establishing jurisdiction, and permitting can be complicated, as you have discovered.