The feds pursued SWANCC and got burned.

They could have just allowed SWANCC to dump their bales. They fought the battle, but lost the war.

Now we have Carabel and odds are the feds will again loose (at least partially).

Why not regulate by mitigation? "Permit approved with 10:1 mitigation." The MOA refers to functional replacement, not acreage replacement.

The new regulatory motto could be "If the project mitigates, we won't litigate".

Just make mitigation a deterrent.

Mr. Spencer,
The feds would run into a consistency problem. If they require a 2 to 1 ratio on wetland A, and a 10 to 1 ratio on wetland B, and the wetlands are similar (except for the fact that the feds think they might not have jurisdiction over wetland B), then owner of wetland B can rightfully claim that the corps is not enforcing the law consistently.

Also, what about Raponos? He says he didn’t need a permit in the first place and just did his project. If he never bothered with getting a permit, what good would it due the Corps to plan on imposing a 10 to 1 mitigation ratio when Raponos doesn’t recognize the Corps jurisdiction?

There are some projects that just should not be permitted. If the corps were to simply have a mitigation ratio ($) as a deterrent, the law would not be a deterrent for wealthy, and only the little guy would get screwed. At least now, all land owners are getting screwed equally.

Andrew Geffert said:

"...The feds would run into a consistency problem. If they require a 2 to 1 ratio on wetland A, and a 10 to 1 ratio on wetland B, and the wetlands are similar......, then owner of wetland B can rightfully claim that the corps is not enforcing the law consistently..."

Dear Mr. Geffert,

For your information, it is the official Corps of Engineers policy to assert jurisdiction and issue permits on a case-by-case basis (Corps/EPA Joint Memorandum 1/03). The Corps has no legal obligation to be consistent and similar in the way that it regulates wetlands. There has been a general presumption for a long time that natural variation among wetlands renders a "consistent" approach mute and impossible to implement. This is one reason why there is wide variation in mitigation ratios and other permit requirements.

In some cases, the permit conditions are different for an after-the-fact permit, than for a "similar" before-the-fact permit. In my experience, the permit conditions and mitigation requirements are shaped more by the negotiating skills of the consultant or attorney, and less by the functional characteristics of the impacted wetlands. Likewise since the SWANCC decision in 2001, the Corps has in some cases reduced the burden of Sec. 404 permits to encourage land owners to stay in the permit process.

Johnny Stevens said:

"...the Corps has in some cases reduced the burden of Sec. 404 permits to encourage land owners to stay in the permit process."

So you are saying that the corps is doing the opposite of what Bill Spencer suggests? Instead of making mitigation a hammer, the corps is making it easier to get permits if there is a chance that the wetland isn't regulated given SWANCC? That sounds a bit dangerous for the Corps. Wetland permits are judged on a case by case basis, but the standards and basis for decision should not change. All else being equal, wetland A should be no easier to fill than wetland B simply because the corps thinks that the owner might fight Corps jurisdiction over wetland A and not B. The owner of wetland B would have a case of not being treated equally under the law (although that would be a difficult case to prove).

Andrew Geffert asked:

"...Instead of making mitigation a hammer, the corps is making it easier to get permits if there is a chance that the wetland isn't regulated given SWANCC..?"

Dear Andrew,

Over the last four years in the federal Fifth Circuit (Tex,Lou,Miss) there have been major disputes between the Corps and our federal courts over the boundaries of federal CWA jurisdiction. As a result, many land owners have chosen to rely on the court's definition and have opted out of the Corps' permit process entirely.

In response, the Corps has attempted to persuade some land owners to accept its definition of jurisdiction and remain in the permit process, by making permits less onerous in terms of mitigation, excessive delays, and interference from other agencies.

As a land owner who has been through the permit process, I have little ability to know or determine how the Corps may be treating other permit applicants under similar circumstances. My desire to avoid the permit process has less to do with inequalities in the treatment of applicants, and results more from heavy cost and injustice of the process.

Given the choice, most land owners would prefer to avoid the permit process entirely. In the Fifth Circuit we have a choice, but this may change soon depending on how the Supreme Court rules in Rapanos and Carabelle.

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