quote:

The failure to obtain good legal advice in a timely manner is the root cause of many horror stories. An Attorney may be able to utilize various legal arguments that could avoid and minimize the permit process, thereby avoiding the type of problems that plague Mr. Mielke’s project. For example, the stream that Mielke seeks to dam may not be jurisdictional depending on the federal Appeals Court Circuit in which the project is located. Likewise, an independent analysis of “relatively permanent” or “significant nexus” may alter the jurisdictional status. This is where a good Attorney could help.

Johnny, I'm not sure if you are a lawyer or not, and I'm not going to go into a lawyer jokes either way, but I don't really agree with your approach.

First, your comment about the stream that we're damming is completely off-base; it is very jurisdictional, trust me. (didn't you read my last post about making site specific suggestions that don't make a dam bit of sense?)

Second, your approach in using a lawyer to "avoid and minimize" the permit process is somewhat ironic...we're supposed to avoid and minimize wetland impacts...not the permitting process. Our Corps district bristles when they hear "lawyer speak" from the Applicant's side, but that is exactly why the process we have experienced has escalated to the level it is at now.

When I submitted our original application, the Corps PM met me on site, had a site visit, agreed with everything we said, prepared the PN, sent it out for agency comment, and then started preparing the DD. Then, some DAM Corps lawyer stepped in, and said that the Applicant's purpose and need wasn't valid, that they hadn't looked at enough alternatives, etc...(see my last posts for all the other hoops they've had to jump through).

Craig, I can provide you an answer-but you will need to take a step back from your hard line position.

First of all: There is nothing about flood control that makes it water dependent. That is–there are ways in which flood control can be achieved that do not require fill to be placed in wetlands. These vary among watersheds but can include upland detention ponds, reduction of impervious surfaces, levee set-back, land purchase, reduction of sediment input, and even creation of wetlands. Most of these options do not require wetland fill, and therefore, flood control is not necessarily a water-dependent activity. (These are numerous case laws on this determination going back to the 1970's). I have seen nothing in the recent cases that affect the requirements for the 404(b)(1) water dependency requirement OR the requirement that the applicant prove that the activity is water dependent NOT that the regulators prove it is not.

A good example: The Animas-La Plata project was proposed as a project to meet mandated actions required by Congress (delivery of xx acre-feet of water to Indian Tribes). It took years to get a permit, simply because the project proponent refused to look at alternatives to deliver the water that did not require a dam. The EPA won on the point that a project who’s purpose is to deliver water, is not water dependent, as water could be delivered without any wetland fill.

The bottom line: there are very few projects that are “clearly water dependent” according to 404(b)(1) requirements.

Secondly: The regulators are within their right to question a project purpose and need, and that has also been demonstrated in court. In general, the applicant can not state the project P&N so narrowly that only one alternative, or set of related alternatives, can meet the P&N. If your P&N is to build a reservoir for flood control–it is too narrow and easily challengeable.

Third: If an individual permit is required, then NEPA must be done. I am not sure what you mean by a “full NEPA analysis”. If effects are not controversial and there would be no significant effects after mitigation, you can do an EA. But if the effects are controversial or would not be fully mitigated than an EIS is required. Also, agencies are included in “the public”. If agencies comment, but other interested individuals do not-you still have received public comments. But even if you don’t receive comments, all you have done is complete one portion of the NEPA process, not all of it.

Unfortunately many COE regulators are not skilled in NEPA so that they may have been giving you the wrong information regarding the interface between NEPA and CWA. But a dam is not permitted under nationwides, and IP’s require NEPA.

I hope that this helps a bit. If not email me (westernwet@aol.com) and we can set up a phone call. But I really do understand the COE position as pertains to a water resource project.

Leslie

I have to agree with JL Gacy on this one (never thought I would type THAT statement). While COE is wildly inconsistent on their treatment of these types of projects, legal precedent is 100% on their side.

My advice would be to enlist another government agency, or a non-profit group who does this type of work to "advocate" with the Corps on your behalf. In due time (key!), this "shepherding" approach has been very successful across the country. It takes a lot of patience, but at least most of the conversations will be positive and polite.

Alternately, hire a wetland consultant and a lawyer. Prepare for animosity, prepare to pay, and prepare for the Corps to fight via a war of attrition (delay after delay after delay on items that do not have a required timetable). Your odds are only slightly better in that scenario, and you still may not succeed!

I almost always suggest that landowners not pursue their own permits.

Kirk said:

"...While COE is wildly inconsistent on their treatment of these types of projects, legal precedent is 100% on their side..."

Dear Kirk,

Recent US Supreme Court decisions and other federal court decisions have challenged the Corps practice of regulating land-use via wetlands. In the recent Rapanos decision, the Supreme Court stipulated that the term "waters of the United States" could no longer be used to regulate land use. The court also reaffirmed that non-navigable, isolated, intrastate waters are not subject to CWA jurisdiction.

Federal courts in the Fifth Circuit and elsewhere have sided with land owners on numerous occasions where the Corps overstepped its legal boundaries. Both the courts and the Corps recognize that federal regulation of land-use is legally untenable over the long term, and have implemented policies to address this issue.

Under the EPA/Corps Joint Memorandum of 1-03 and the recent Rapanos Guidance documents, regulators are now required to consider relevant court decisions before asserting jurisdiction. The intent of this policy is to curtail the Corps' longstanding practice of requiring permits on projects that may not fall within its jurisdiction.

There are numerous federal court precedents that protect land owners and support the traditional right of state and local governments to regulate land use. Unfortunately, regulators routinely fail to inform land owners of their rights under federal case law. Likewise, many land owners are often negligent in seeking such information.

When properly evaluated and applied, relevant court decisions may reduce the reach of regulatory authority on some projects and allow land owners to avoid and minimize the convoluted permit process.

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

That is true. The Corps' apply-as-needed "selective precedent" approach to jurisdiction has been doomed for years, but hard to really eliminate out of the COE regulators culture (if such a thing exists).

On the other hand, I do not support reducing APPROPRIATE regulatory authority at the Federal level. Many states and almost all localities have shown that they are fully incapable of any consistent application of wetland protection regulations. Much of that is NOT a result of any perceived lack of regulatory/scientific sophistication, but instead due to endless pressure from local politicans, lawyers, and business owners trying to increase the tax base and solicit "highest and best use". We've all seen it first hand.

And in the end, many of these wetlands in my part of the country (Northeast) truly are "interstate resources." Someone should be looking out for the best interests of these natural resources.

This is in regards to how the Army Corp of Engineers is asserting jurisdiction over an isolated wetland. So far they have not been able to justify their assertion. As it has been over 6 months and I still don't have a response to my request I am contacting them once again. We will see how long it will take to get the response from the Army Corp of Engineers.

From: Randy Peterson [mailto:randy@peterson-motorsports.com]
Sent: Monday, November 05, 2007 5:06 PM
To: 'michael.s.***ell@usace.army.mil'
Cc: 'mark.f.sudol@hq02.usace.army.mil'
Subject: Peterson Utah property

Dear Mr. ***ell:

Should I assume from your lack of response to my letter and email of March 15, 2007 that the U.S. Army Corps of Engineers is not going to assert jurisdiction over my property? If this is not the case, please advise me as to what you think would be a reasonable amount of time for me to wait for a response from you regarding this matter, as it has already been over 6 months.

Sincerely,

Randy Peterson