Chapter 7. THE AQUATIC ENVIRONMENT:
                    Wetlands

• Executive Order 11990, Protection of Wetlands (President Carter), 42 Fed. Reg. 26961 (May 24, 1977) .pdf file
• Recognizing Wetlands from the U.S. Army Corps of Engineers (USACOE).
• Report to Congress on the Status and Trends of Wetlands in the Conterminous United States 1986 to 1997 from the U.S.F.W.S (2001).
• Waterways, Wetlands and Erosion Control from PaDEP.

B.  What Constitutes Dredging or Filling a Wetland?

National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998).
Final Rule 64 Fed. Reg. 25119-25113 (May 10, 1999), amending the definition of "Discharge of Dredged Materials" in 33 C.F.R § 323.2 (USCOE) and 40 C.F.R.§ 232.2 (EPA), essentially to replace the words "any redeposit of dredged material'' with the words "redeposit of dredged material other than incidental fallback'."
USACOE/EPA Joint NOPR, Further Revisions to the Clean Water Act Regulatory Definition of ``Discharge of Dredged Material,'' 65 Fed. Reg. 50107-50117 (August 16, 2000) to amend 33 C.F.R § 323.2 (USCOE) and 40 C.F.R.§ 232.2 Definitions (EPA) as follows:
"Discharge of dredged material

"(1) * * *

"(2) A discharge of dredged material shall be presumed to result from mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the United States. This presumption is rebutted if the party proposing such an activity demonstrates that only incidental fallback will result from its activity."
40 C.F.R. Pt. 230 § 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material

C.  What Wetlands Are Subject to Regulation? "Waters of the United States"

1. "Adjacent Wetlands"
   United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)
2. "Isolated Wetlands"
   Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1994)
   Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineer, 531 U.S. 159, 121 S.Ct. 675 (2001)
   Geographic Jurisdiction in light of SWANCC from EPA Office of Water.
   "Supreme Court Ruling Concerning CWA Jurisdiction over Isolated Waters," Memeorandum from EPA and USACOE General Counsels (2001)
   United States v. Wilson, 133 F.3d 251 (4th Cir. 1997)
   EPA/USCOE Guidance Document for implementation of Wilson Decision {withdrawn on January 19, 2001 to allow for reconsideration in light of SWANCC.
3. "Agricultural Wetlands"
   United States v. Brace, 41 F.3d 117 (3d Cir. 1994), cert. denied, 515 U.S. 1158, 115 S.Ct. 2610(1995).
   • Wetlands and Agriculture: CWA § 404 and "Swampbuster Provisions" in the Food Security Act
   • "Brace Files Takings Claim in Federal Court," from Pennsylvania Landowner, vol. xi, no. 4 (Nov. 1998).
   • Victims — Chronology of a Nightmare, A Pennsylvania Landowner's Association, Inc. Special Report on Robert Brace's encounter with the USACOE, including photographs and copies of various notices and orders from USFWS, USACOE, PaDEP, and USEPA.

Bresaani v. United States Environmental Protection Agency, 850 F.2d 36 (2nd Cir. 1988).
Mitigation
• Wetland Land Banks and Mitigation Fees from the Environmental Law Institute.
• Compensating for Wetland Losses Under the Clean Water Act   Natural Resources Council Report (2001).
• Mitigation and USACOE Mitigation Guidelines from ASWM.
• Army Corps of Engineers Responds Positively to NRC/NAS Report on Mitigation from USACOE.
  • USACOE Regulatory Guidance Letter 01-1 Mitigation Policy.

Palazzolo v. Rhode Island, ___ U.S. ___, 121 S.Ct. 2448 (2001).

1999-2000 Proposed federal "takings" legislation:
H.R. 2372, the Private Property Rights Implementation Act, as it passed the House of Representatives on March 16, 2000, and was referred to the Senate's Committee on Judiciary on March 20, 2000 (did not pass).

Witnesses before House Judiciary Committee, Subcommittee on the

Constitution, in support of and in opposition to H.R. 2372, with links to their

statements.
S. 1028, Citizens Access to Justice Act of 1999 (Senate version) (did not pass).

What Are "Wetlands"?
• USACOE 1987 WETLANDS DELINEATION MANUAL from WETLANDS.COM.
• FIELD INDICATORS OF HYDRIC SOILS IN THE UNITED STATES (VERSION 4.0 March 1998), United States Department of Agriculture, Natural Resources Conservation Service, Wetland Science Institute and Soils Division in cooperation with National Technical Committee for Hydric Soils
• Hydric Soils of the United States by USDA-NRCS Soil Survey Division (Univ. of Iowa).
• Northeast Wetland Flora, Field Office Guide to Plant Species from USGS

U.S. Army Corps of Engineers (USACOE) Pages:
• Statues and Regulations administered by USACOE.
• Index of Wetland Regulatory Guidance Letters.
• Applicant Information for Preparing Applicaitons for USACOE Permits.
• USACOE Regulatory Page maintained by the Sacramento District Office.
• Text of Nationwide Wetlands Permits and Conditions.
  • "Final Notice of Issuance, Re-issuance, and Modification of Nationwide Permits", 61 Fed. Reg. 65874 (December 13, 1996) (codified at 33 C.F.R. §§ 330.1 to 330.6).
  • "Notice of Intent to Issue and Modify Nationwide Permits," particularly NWP 26 and replece it with several to become effective March 28, 1999, 63 Fed. Reg. 36039 (July 1, 1998).
• USACOE Wetland Publications - including Delineation Manual

U.S. Department of Agriculture:
• USDA Natural Resources Conservation Service
• Wetland Science Institute (WLI) Home Page United States Department of Agriculture. Natural Resources Conservation Service
• USDA STREAM CORRIDOR RESTORATION HANDBOOK

U.S. Environmental Protection Agency:
• EPA Wetlands Division; within the Office of Wetlands, Oceans, and Watersheds
• Wetlands Fact Sheets.
  Economic Benefits of Wetlands.
  What About Takings?.

Wetlands Mitigation Activities
• Compensating for Wetland Losses Under the Clean Water Act, National Academy of Sciences (2001)
• Wetlands Mitigation Banking, an EPA Fact Sheet.
• Wetlands Banking Study Home Page (2001) from the Environmental Law Institute.
• USCOE, EPA, NRCS, FWS, NMFS Final Guidelines for the Establishment, Use and Operation of Mitigation Banks, 60 Fed. Reg. 58605 (1995)

Other Internet Sites of Interest:
• Primer on Sources of Federal Wetlands Law, by Daniel R. Mandelker, Stamper Professor of Law, Washington University in St. LouisALI-ABA Program (1997).
• THE WETLANDS REGULATION CENTER presented by Environmental Technical Services as WETLANDS.COM Co. (wetlands regulations, pending federal legislation, selected federal court decisions, and other materials)
• National Wetlands Inventory U.S. Fish and Wildlife Service
• Wetlands Interactive Mapper from FWS. Find wetlands in your area.
• Preident Clinton's "Clean Water Initiative".
• Wetland Links from Richard B. Winston.
• Wetlands for Treatment of Acid Mine Drainage, by Dr. André Sobolewski 1997.
• Coastal Marsh Project Home Page by NASA and University of Maryland Department of Geology.
• The Great Lakes Wetlands Conservation Action Plan (GLWCAP) GLWCAP is a cooperative partnership among government and non-governmental interests to protect and rehabilitate wetlands of the Great Lakes basin. It was launched as a key delivery mechanism for the Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (COA) goal of rehabilitating and protecting 6,000 hectares of wetland habitat by the year 2001.
• Restoration of Aquatic Ecosystems: Science, Technology, and Public Policy (1992), prepared by Commission on Geosciences, Environment and Resources, landmark text made available on line by National Academy Press.
• SCHMID & COMPANY, INC., CONSULTING ECOLOGISTS Site contains "real world examples" of firm's services.