Okay. Good morning. Or afternoon, everyone, depending on what time you're watching this. Thank you for tuning in. This is going to be a presentation about wetlands laws and regulations. And specifically, it's going to be focused on federal, federal regulation of wetlands. And I say that because, as I'll discuss throughout the course of this brief, there are also lots of state regulations that apply to wetlands. But because this particular presentation is to a national audience rather than to a specific state, I'm going to focus again on federal. But there are times that I will mention state regulation and this is a good time for me to introduce myself and my law firm. My name is Bryan Peeples. I am an attorney and associate attorney with the law firm of Pender and Coward. We are in Virginia Beach, Virginia. Our firm has been around for about 135 years when one of the oldest local law firms in in the what we call the Hampton Roads area, which is Virginia Beach, Norfolk, that area in southeastern Virginia. It's a great place to practice environmental law, frankly, because as we'll discuss a little bit, we just have a lot of a lot of rivers, a lot of coastline, over 10,000 miles of coastline around here. My law firm does pretty much everything. We're basically focused on civil litigation. We don't do too much criminal. And the four individuals that you see in front of you right there are part of what we call our waterfront law team. About five years ago, four of us got together that were interested in a sort of an overarching umbrella of legal issues that we just refer to as a group as waterfront law. That includes things like riparian, property rights, admiralty law and environmental law. What we're going to be talking about today is wetlands regulations, again, which is a subset of of environmental law. The person that you see on your left there in the blue shirt, his name is Tom Berkley. He is a his focus is maritime and Admiralty. So shipping ports, anything like that. The next person to your right in the this shirt with the sleeves rolled up a little bit is myself. I'll tell you about myself in just a second. The person to my to the right. As you're going from left to right with the hat on is Jim Lange. He leads our team. He's been doing this for about 30 years. He has a not only, of course, a but also a master's in environmental law. And he is the, again, the leader of our waterfront property law team. And to the far the farthest to the right. And the gentleman with the glasses is Jeff Wilson. Jeff has a lot of specialties and including labor and employment, which, believe it or not, does play into waterfront law. And you get into things like. This labor disputes on ships and things like that. But he's also a property. He specializes in property law. A little bit about myself, I was I'm I came to the practice of law a little bit differently than most people. I was a Navy pilot flying combat aircraft for 22 years. I retired from the Navy my last three years in the Navy. I was on the US Joint Staff and while I was on the US Joint Staff, I went to law school at night. So it was a night law school student. I retired from the military and graduated from law school in the same weekend. And then I took the bar exam and I've been practicing with Pender and Coward ever since, and that's been about six years now that I've been that I've been barred and that I've been practicing with this firm. So again, that was just a little bit of background. So you get to know the person and the firm that's that's giving you this presentation. And now we will get into our topic, which is wetlands laws and regulations. Okay. So just in general, the things that we're going to cover today are first and foremost, how to identify wetlands. What is a wetland That's kind of important. Before we start talking about regulating them, why do wetlands matter? How wetlands came to be regulated because they weren't always regulated. And this is actually fairly recent that wetlands are protected and regulated. We're going to talk a little bit about federal regulation versus state regulation. And again, I'm not going to get too much into the details of the state regulation, but it's important to know that there are state regulations. So I'll touch on that from time to time. We're going to talk about things that you can do in a wetland and things that you absolutely cannot do in a wetland, or at least not without not without permission. We're going to talk about the permit process, how you get permission to do these things, enforcement. In other words, if you do something that you're not supposed to do, what can they do to you? And it's not good for you if you're the person who's done something in a wetland without permits. And then I have questions on here. But this is a recorded this is a recorded lesson. So don't think we'll be able to do that. Okay. So the most basic question. Is what is a wetland? What? What are we talking about? People have kind of an idea about wetlands, I think. I think when people think of wetlands, you think of like a marshy, soggy area, something like that. And that's not wrong. But there are we're lawyers, so we need legal definitions. And where do we find this? We find it in the Army Corps of Engineers delineation manual. This is a manual issued by the Army Corps of Engineers, of course, in 1987. And. Army Corps. Defines a wetland as quoting those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support that under normal circumstances, do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Boy, I'm really glad that they cleared that up. Yeah. Leave it to the federal government to. To come up with a definition that's about, you know, a paragraph long and you finish reading it and say. I still don't really know what that means. Well, the easiest way to think about it is like this. Think about a water body. Any any water body, a lake, a river, especially a tidal water body. There are areas in that water body that are water all the time. Right. They're always wet, if you will. They're always full of water. And then there are areas that are upland that are always dry. And then there's sort of a transition area in between a soggy strip, if you will, and a tidal area. This might be a marsh, you know, in a pond that that comes up and down as evaporation happens and then rainfall happens. It's this strip close to the close to the body of water that sometimes is saturated and sometimes is not. And this is a good time to point out that. The Army Corps of Engineers Delineation manual, which I just read to you from, has local districts as well. I should say. The Army Corps of Engineers has local districts as well. For example, where I am right now, I'm in the Norfolk district. Um, and particular districts can have supplements that that add add to those definitions. Okay. So it's important to remember that the definition that I just gave you and a lot of what I'm going to be talking about today is sort of the overall national level stuff. But not only do you need to look at your particular state if you're dealing with wetlands, but you also need to look to see if the particular division or district that you're in under the Army Corps of Engineers jurisdiction has particular guidance that applies to your district. But getting back to what I was talking about before, about what is a wetland, it's that soggy strip, okay? But you can't just look at it and know whether something is a wetland or not. There are certain characteristics that are required in order to actually classify an area of land as a wetland. Okay. And if you have these characteristics, you might be a wetland. Dating myself a little bit. That's Jeff Foxworthy. He used to be a be a comedian and he would say, you might be a redneck if you have these characteristics. Well, you might be a wetland or in a wetland if you have hydrophytic, vegetation, hydric soil and hydrology. Okay. Those are the three things that that is required that are required to to be classified as a wetland. So what are those things? Okay. Hydrophytic vegetation. There are certain plants that only grow in saturated soil. And that's quite unique because most plants actually can't grow in saturated soil. You know, if you just soak the water too much, most plants can't grow there because there's not enough oxygen that they can pull out of of that dirt because of because of the water. But these type of plants, the hydrophytic vegetation only grow in saturated soils. So if an expert goes out and sees particular types of of plants, particular types of vegetation, that's an indication that this is a wetland because, hey, those plants only grow in saturated soils. The other things that we're looking for or are hydric soil and that just means saturated soil. It doesn't mean that it has to be saturated all the time. Okay. But there's indications there that this dirt is sometimes wet. And of course, we're not talking about being wet from rainfall or anything like that, but wet from actually the water body that's that is nearby, too. And then there's just this general term called hydrology. Okay. So it's basically a study of of how the water interacts with the land. And this has to be done by an engineer. Okay. I call it an engineer thing. There are engineers and engineering firms that specialize in wetlands, wetlands delineation and things like this. So if you and I'll go into this process a little bit later, but if you're curious as to whether you're in a wetland, it's best to contact one of these firms and they can actually come out and determine whether you have hydrophytic, vegetation, hydric soil, and they'll do a hydrology study and come out telling you whether or not there's wetlands on your property and if so, where those wetlands are. All right. I'm going to talk briefly about the Cowardin classification system. There are types of wetlands. They're not all the same. Okay. In 1979, there was this guy, an environmental scientist, and his name was Louis Louis Cowardin. Okay. He developed five basic classifications of wetlands. And he just developed this for his own for his own scientific research and became fairly well known. And people just started using the Cowardin classification system whenever they were talking about different types of wetlands in 1986. The US Congress passed what they called the Emergency Wetlands Resources Act, and that actually mandated the US Fish and Wildlife Service to map and classify all the wetlands in the United States, which is a ridiculously difficult and huge task. There's hundreds of thousands, maybe millions of acres of of lands that could be classified as wetlands within the United States. Right. So how are we going to do this? Said the US Fish and Wildlife people to each other. And they said, Well, hey, we've got this scientist named Lewis Cowardin and he's developed these five basic classifications of wetlands. Let's use that. And in fact the the federal government via the US Fish and Wildlife Service did adopt the the Cowardin classification system as the way to to classify these five types. And again, all of these five types that you see listed on your screen, which I'm going to read to you in a second, they all have to have some of those. They all have to have all three of those characteristics in varying degrees. Okay. The hydrophytic soil, the the I'm sorry, the hydrophytic vegetation, the hydric soil and the correct hydrology. But within that, they're broken down into these five categories and they're the ones you see on the screen there Marine, Estuarine, riverine, Lacustrine and palustrine. Okay, we'll talk. First, I'm going to go through briefly each of these types, these five types of wetlands via the Cowardin classification system. Marine is probably the simplest. Everyone who's ever been to the beach knows what this is. This is basically the wetlands that are adjacent to an open ocean. So obviously the oceans are titled The tides come in, the tides go out. You can see there's sand that's sometimes covered with water and sometimes not. That's a marine wetland. Not too difficult to identify a marine wetland area. Okay. The next type is an estuarine, which is a wetland that's next to an estuary. So what's an estuary? An estuary is a water body that's partially enclosed by land, and it's a mixture of saltwater and freshwater. Think about a bay. And I'll just point out again, since I'm in the Norfolk, Virginia, area that we are on the Chesapeake Bay here, we're on the Chesapeake Bay. The Chesapeake Bay runs from Virginia, from Maryland and Delaware. It I should say that Virginia and Maryland and Delaware all have parts of their states that are on the Chesapeake Bay. The Chesapeake Bay is the largest estuary in North America. And if you have land that's adjacent to the Chesapeake Bay, you're probably in an estuarine wetland. Okay? The Chesapeake Bay is huge. It's also it's kind of shallow. It's, again, the largest estuary in North America. And it's a mixture of saltwater and freshwater. It's an it's an estuary. And there are plenty of other ones in the United States, too. But again, being a Norfolk based person and just because it happens to be the largest one in North America, I want to mention the Chesapeake Bay. Okay. Riverine are wetlands that are next to freshwater rivers. And that's kind of important because we have most rivers certainly here in this area. But most rivers, you know, they start from the rivers flow to the sea, obviously. So they may start out as freshwater as they come down from the mountains and the tributaries and wherever the rivers are starting. But as they flow towards the ocean or flow towards the bay, that then leads into the ocean. They start out as freshwater, a lot of rivers, and then they sort of transition. They have a transition period where they become saltwater. And by the time they enter into the ocean, you know, they're saltwater because they're picking up those different minerals as they flow, as they flow across the land. So riverine wetlands, though, are the portion of or the land that's adjacent to the portion of the rivers that are freshwater. As it transitions from freshwater to a mix, then you're in an estuarine wetland. And as it transitions from the mix to a full saltwater, you're probably in a marine wetland. Okay. The next type of wetland under the Cowardin classification system is Lacustrine wetlands, and this is freshwater that is still okay as opposed to being in a river or being tidal. Think about like lakes and ponds. So yes, there are wetlands around lakes and ponds and this includes privately owned ponds. So people are sometimes surprised to find out that if they own a property and they have a pond, that even though it's their private property, that there are regulations, things they can and things they cannot do on the on the edge of their privately owned pond. Okay. So lacustrine wetlands again, freshwater. That's still it doesn't move with the tide or with the flow of a river. And those are typically lakes and ponds. Now, this is the most controversial and the most interesting in a way. Palustrine wetlands. Some people say palustrine. These are inland freshwater wetlands. And these are interesting because they're not necessarily close. To a water body. They're not right on the edge of a water body. Like, for example, it's not a marine wetland that's right on the edge of the beach. It's not a riverine wetland that's right on the edge of a river. But it's somewhere that doesn't appear to be necessarily that geographically close to a wetland. But they still have these lands that still have the characteristics of wetlands. In other words, you'll find the hydrophytic vegetation there, you'll find the wetland hydrology there. You can find saturated soil there sometimes because there's some connection, even though it may not be visually obvious to a water body. And these are the most controversial. And I will discuss that in the next slides. But just be aware that when when litigation ensues, litigation that goes all the way to the Supreme Court, it's typically these type of wetlands that we're talking about, the ones that aren't necessarily visually right adjacent to a water body, but still have those characteristics. And those are the palustrine wetlands. So before we start talking about the legal stuff, if you will, I think it's important to just take a second and ask, why do aliens even matter? You know, why do we even care? Because everybody knows or should know that they're highly regulated and they're highly protected. But why? You know, why are they beneficial at all? Well, I'll just say we haven't known as a as a society, as a world we haven't known for that many years how important wetlands are. But we're definitely starting to learn now. They do a lot of things for us. They do a lot of things for for the planet and. And therefore for us as people who need to live on this planet, they act, they perform flood control. Okay. How do they do that? Wetlands, again, are that soggy area between water bodies and the upland where people live. They act like giant sponges. Okay. When there's a storm surge, when there's high tides that are that is coming in, these marshy areas, these soggy areas, soak that water up. Okay. And they take it up. They take it up into the wetland instead of having it come up as sea level rise, you know, coming up into your streets. Coming up into your houses. A wetland serves that purpose. It acts like a big old sponge and soaks up that extra water on those times of high tides or. Excess water from the water body. They perform groundwater recharge. Okay. What does that mean? There are underground aquifers and a lot of places in the United States that supply fresh water and cities, towns, people, farms get their fresh water, get their drinking water from these underwater aquifers. In some places, the underwater aquifers are the only source of fresh water that people can use. And I'll give you an example here. A local example. The eastern shore of Virginia is sort of a narrow peninsula that runs up the the east coast of Virginia. And in that area of Virginia, the only the only way to get fresh water for drinking and for use in your houses, bathing things like this is from underground aquifers that hold this fresh water. So how do wetlands play into that? Well, wetlands, again, they absorb water, rainwater and filter it down. They funnel it down, down, down, down into the earth and into these into these aquifers. They recharge it. Okay. That's what it means by recharging. It means the aquifers get low because we're tapping it and then it rains again and the wetlands capture that. They filter it down and it goes into the aquifers. Wetlands filter out pollutants. So as as pollutants flow from the land towards the sea or towards the bay or towards the river, if it has, it has to go through these wetlands areas. Right? And they'll filter out things like nitrogen and phosphorus, which was a big problem near farming areas. Nitrogen and phosphorus, for example. And I'll give you another local example here, coming off the land here in Virginia and into the Chesapeake Bay and also in Delaware and Maryland are causing big algal blooms in the Chesapeake Bay, which are which is killing, killing wildlife. It's killing fish, it's killing sea life, it's killing shellfish. But wetlands help to minimize that. Okay? They filter out some of that bad stuff and it gets trapped in the wetland rather than going into the into the bay or into the river or into the ocean. And not only do they filter out pollutants that you can't really see like nitrogen and phosphorus, but they also filter out garbage. You know, if there are people throw cans and coke bottles and things like this and it gets washed by the rainwater towards the sea, a lot of it will get caught in those marshy areas. And granted, it looks terrible to have garbage in the marshy areas. And I'll just give a shout out to my firm. Once a month we go out and actually clean up those areas as a public service. Um. But it's also beneficial to have that stuff trapped in the wetland in the marshy area rather than going out into the sea. Right. We're going into the ocean, going into the rivers where it can be eaten by animals, where it can cause other other worse damage than just looking terrible. Wetlands are also home to a lot of a lot of animals and some endangered species, too. You know, not only little crabs and some little fish and things like this, but there are also, you know, birds that that that make their home near the wetlands, for example. Some of these species are endangered. And then there's carbon capture. So just like any plant, basically wetlands, vegetation is a vegetation. So it takes in carbon and produces oxygen exchanges, oxygen or rather exchanges, carbon dioxide for oxygen. So that's good. And there are also economic benefits to wetlands. Again, this is this these are areas are home to a lot of shellfish, a lot of seafood, example, things like that. So there are many, many benefits, many reasons why we want to protect wetlands. And we do. And 5 or 6 things that we've listed. But there are there are other benefits to wetlands as well, and this is why they're so protected. Okay, so how did wetlands come to be regulated? Because, again, as I touched on before, they certainly have not always have not always been regulated. In fact, prior to 1972, wetlands weren't regulated at all by anybody, by the federal government or by the state governments. Wetlands, In fact, even though all those wonderful things I just told you about wetlands prior to the 1970s, when there started to be an awakening, if you will, about the importance of protecting our environment. Prior to that, wetlands were considered to be nasty areas. They were considered to be swamps. They were considered to be homes to mosquitoes, infirmaries of disease. Not only did we not want to protect wetlands, but we actually wanted to destroy them. Filling in wetlands, you know, bringing in soil and dumping it into these marshy, soggy areas was not discouraged. In fact, it was encouraged. A lot of our cities today are built on what used to be wetlands, what what should be wetlands, frankly. Um, but there were filled in the city of Norfolk Virginia is an example about that of that most of Norfolk, Virginia is built on filled in wetlands filled in many years ago. And because of that, this city, Norfolk, has the second worst sea level rise problem in the United States. It's a huge problem. And right now there's a multi, multi-million dollar project on the way to mean underway to try to solve this, you know, by building seawalls and things like this, because frankly, they built the city where they shouldn't have another example of a city that that's built like that, which I think most people are familiar with is New Orleans. I mentioned that Norfolk has the second worst sea level rise problem. New Orleans has the worst. Again, when you build a city below sea level and you build it in a place where it shouldn't be a city, but it should be wetlands, wetlands performing all those functions that we talked about. Now those functions are not being performed. The water isn't being soaked up by the sponge, and instead it's going right into the city. And we've all seen what happens with hurricanes and with storms in places like New Orleans. And again, there are plenty of other places in the United States that are coastal or on rivers that are experiencing these same problems, because, frankly, we didn't know what we were doing as a as a society when it came to constructing places in places where things shouldn't be constructed. But in 1972, that started to change. President Richard Nixon was in office, and we all know he's a flaming left wing liberal environmentalist. No, he's not. I'm just kidding. He was not he was a conservative Republican president. However, he did recognize and Congress recognized the importance of protecting our environment. And in 1972, Congress passed and President Nixon signed the first real environmental federal environmental regulation. And that was the Clean Water Act. Okay. It's a huge, very expansive law. Okay. Um. Section 404 of the Clean Water Act is the section of the act that deals deals with wetlands. But interestingly enough, Section 404 and in fact, nowhere in the Clean Water Act does it actually use the word wetlands, which is a little bit strange. Instead, what Section 404 says that it does is that it regulates, fill and discharge into the waters of the United States or navigable waters. Waters of the United States is a term that you will hear throughout federal litigation a lot if you do anything to do with with environmental law and frankly, property law, too, because this has to do with whether or not waters of the United States come into play with things that you can do on property, how it can be developed, etcetera. We'll get into that in a second. So as waters of the United States, which we call wotus, wotus or navigable waters. Now, I think that you'll probably agree with me that those are not very clearly defined. And of course, Section 404 of the Clean Water Act doesn't really define them either. They just say, hey, the federal government can regulate what you can dump into waters of the United States or navigable waters. Um, and perhaps because it's not clearly defined. Section 404 is the most litigated and the most controversial part of the entire Clean Water Act. So the part that deals with wetlands, even though they don't call them wetlands, is Section 404. And it's controversial. And the reason that it's controversial, aside from the fact that it's not clearly defined, is because Section 404 and I touched on this previously just a little bit, it places limits on what people can do on their own private property. Right. So we hear this all the time as an environmental lawyer, someone will call and say they've given me a violation and this is my private property. And that's true. But. There are limits on what you can do, even on your own private property if that private property is a wetland. It also another reason that it's controversial, aside from the fact that it's putting limits on people's private property, is that it's the federal government And again, I'm talking about federal regulation here, sort of stepping in and taking authority over lands that had been the province of the states. Right. So typically state the lands in states unless it's a national park or something like that are regulated by the states and not by the federal government. But Section 404 of the Clean Water Act allows the federal government to to place regulations on land that would normally have, which previously would have only been regulated, regulated by the states. Section 404 is enforced primarily by the US Army Corps of Engineers. Also the EPA, the Environmental Protection Agency can enforce it as well. But back in 1972, when this was new, when this law, when the Clean Water Act was passed initially in 404, along Section 404 along with it, it had lots of exceptions and probably because it was kind of a new concept. So even though it placed regulations on wetlands, there were still things that that were accepted from it that you could still do. And one of the most commonly used exemptions was for farmland. So if a property owner said, Well, we're going to fill this wetland in, but we're going to do it for farmland that was approved, it could be done. It was not covered under under the EPA or I'm sorry, under the Section 404 of the Clean Water Act. And thousands and thousands and thousands of acres of wetlands were filled in to be used as farmlands. Now, the problem with that was that sometimes they weren't really being used as farmlands. Developers just realized that they could say, Oh, we're going to use this to grow crops and maybe they plant like one corn stalk or something like that and build an apartment complex on the other part. So in 1985. And remember, this was initially passed in 72. So we're talking about 13 years later here. Congress got wise to this and they passed another act called the Food Security Act, which is an interesting name. And it's commonly known that the slang term for this act is Swamp Buster Act. And what it did, is it actually more strictly regulated the filling of wetlands for farming purposes. They essentially said, look, we realize that some of you are not really using this for farmland. So if you're farmers and you're accepting federal agricultural services, you're not allowed to mean subsidies or other agricultural subsidies, you're not allowed to drain these wetlands. And the intent of it was to stop this massive loss of wetlands that was happening under the exception for for farmlands. And that's and that's been effective. I'm going to keep mentioning this, but I'm going to I'm going to mention this again. You see at the bottom of your screen there where it says state certification, no permit should be granted if denied by the state. Wetlands are not only regulated by the federal government, but they're regulated by your state. And this is a cooperative sort of thing. So if the state doesn't sign off on a permit application to put fill into a wetland, the feds won't either. So more about that to follow. But just just keep remembering that if you're going to want to do anything in a wetland, you need to research not only the federal the federal regulation, but also your particular state. Okay. And speaking of that very topic, again, after the federal regulations went into effect under the Clean Water Act in 1970, two, states began to follow and they began to put their their particular state regulations on wetlands as well in a lot of environmental law like Clean Air Act and and most most environmental laws, the way that it works is the federal government essentially defers to the state and says, look, state, these are the parameters. Set up your own program. As long as your state program are meeting the requirements, meeting the federal requirements of these guidelines that we've set forth, then we, the feds, will not really bother it. Right? We'll let the states run it. The state can administer their own program and we're not going to pay that much attention to it. Section 404 again, the wetlands section, even though it doesn't use that term, Section 404, is unique in environmental regulation because it does allow the state to set up and administer their own state wetlands programs and regulations. But it's not in lieu of federal regulation. It's actually concurrent with it. Okay, so wetlands are regulated simultaneously by both the feds, federal government, usually through the Army Corps of Engineers and the states. In other words, it's not the federal government saying, hey, states, you run it. Let us know if you have a problem. No, they're both involved. Perhaps that's just a testament to how important we realize wetlands are. If you'll indulge me just for a minute, I'm going to talk about a little bit of Virginia state regulation. The only reason that I'm going to talk about this is as an example of something that your particular state might be might be doing. Okay. So you have to look into it. But this is an example. Okay. So if we're in Virginia in 1972, which is of course, the same year that the federal government passed the the Clean Water Act. Virginia passed what we call the Tidal Wetlands Act, which regulated tidal wetlands. What are tidal wetlands? Well, tidal wetlands, as you might guess, are wetlands adjacent to tidal areas. So this would be an ocean, this would be a bay and part of rivers. Rivers as they. Starting. Starting from where they start. Usually upland somewhere are not title. And then as they flow towards the sea, at some point they become affected by the tides. So in 1972, Virginia passed the Tidal Wetlands Act, which regulated wetlands that are adjacent to tidal water bodies. And we created a state agency to manage that. And we created local wetlands boards within the localities to manage that. But Nontidal wetlands, which would be those ones that are, for example, riverine, the ones that are adjacent to freshwater non tidal wetlands or the palustrine areas, the ones that are not necessarily physically connected to a wetland, we're not regulated at all. In other words, the upland. Wetlands were not regulated at all until 2001. Virginia passed the Non-tidal Wetlands Act, which now regulates upland. Upland wetlands. So the long and short of that is there's federal regulation. It's concurrent with state regulation. And depending on your state, they may regulate tidal wetlands, but not upland wetland non-tidal wetlands, or they may regulate both like like Virginia does. Again, sorry for the Virginia specifics, but it's just an example of how a state and a local I'm sorry, a state and a federal government might work together. Okay. This is incredibly timely. There's been a lot of controversy over the years about the scope of the federal government's power. I'm switching back to federal government now. Federal government's power to regulate wetlands. And why is that? Because, as I mentioned before, Section 404 of the Clean Water Act sort of vaguely defined the jurisdiction of the federal government, vaguely defined the Army Corps of Engineers jurisdiction as waters of the United States Wotus or navigable waters. And because it's vague. And because. Frankly, regulatory agencies have a tendency to expand their view of their own authority. Maybe correctly, maybe not. It depends on it depends on your view. But I don't think most people would argue that. That agencies tend to try to expand their jurisdiction when they can. And this was very controversial because the Army Corps of Engineers was stepping in. Two places where they hadn't previously regulated, obviously prior to the Clean Water Act and expanding their their power and their authority. And this resulted in a lot of litigation, a lot of litigation, and some of it that went to the went to the Supreme Court of the United States. And I'm just going to give you sort of a brief overview of some of those cases and how they've led up to a case that was just just decided on May 25th of 2023. So as I'm recording this, it was less than a month ago called Sackett versus EPA, which is sort of a major change. But I want to start back with the first. Really pivotal. United States Supreme Court case, which was decided in 1985 and it's called Riverside Bayview Homes versus versus United States. In that case, a developer owned a large amount of land that was on the shore of one of the Great Lakes. And he wanted to fill in parts of the wetlands that were adjacent to one of the the Great Lakes. And the Army Corps denied it and actually submitted an application to the Army Corps of Engineers for a permit. And the Army Corps denied that. And it went all the way up to the Supreme Court. And the question before the court was. Is this wetland, this marshy area that's on the shore of one of the the Great Lakes is not on it's not on the shore of a river. It's not on the shore of an ocean. It's a great lake. Is that under the authority of the of the Army Corps of Engineers? Is that a water of the United States and or is that a navigable waterway? And the Supreme Court said, yes, the Army Corps has jurisdiction to regulate wetlands that are adjacent to water bodies. Again, adjacent meaning pretty much touching water, bodies that have traditionally been considered navigable. Um, so what does navigable mean? Navigable means that essentially you can use it in commerce. Well, there's really no doubt that the Great Lakes have been used in commerce for forever. You know, there were even Revolutionary War battles fought on the Great Lakes. Ships have been going through those places forever. So that seems fairly fairly straightforward. But the Supreme Court in Riverside, Bayview, Holmes did confirm that the Army Corps of Engineers or the federal government asking acting through the Army Corps of Engineers, does have the power to regulate wetlands that are adjacent to water, bodies that have been traditionally considered navigable. In 2001. This case called Solid Waste Agency of Northern Cook County versus the US Army Corps of Engineers went to the Supreme Court. The US Supreme Court, you'll hear this usually referred to as Swansea, because nobody wants to say solid waste agency of Northern Cook County. So instead it's ANC or Swansea. In this case involved a developer again, that owned some upland. Okay. He owned land that was not anywhere close to a navigable water body. And on this land, there was not anywhere close to a traditional water body. There were quarries pits which had been dug by people, I assume, because their quarry pits and these quarry pits had filled with water naturally. The developer wanted to fill in these quarry pits in order to develop the land and build whatever they were going to build there, a neighborhood or store or what have you. And the Army Corps said, no, you can't fill these quarry pits because this is a wetland. And they were saying it's a wetland, even though a quarry pit really is not, oh, adjacent to a water of the United States. It's not a water of the United States, and it's certainly not a navigable water body. Okay. It's impossible to believe that any sort of commerce could be conducted by boats running around in a filled in in a flooded out quarry pit. But the Army Corps said, no, we can regulate it under the Commerce Clause, the commerce clause of the Constitution, because migratory birds. Are flying over and sometimes they stop these migratory birds at these quarry pits and they, you know, have a drink of water or whatever, and then they go on. So they're going from state to state. These birds are. And so therefore, these quarry pits are wetlands. They're waters of the United States, and we can regulate them. So this went all the way up to all the way up to the Supreme Court. And the Supreme Court said, no, no Army Corps, that is a step too far. Okay. You can't do that. There's no connection here. This is not a navigable waterway filled in quarry pit. It's not a water. The United States, you do not have jurisdiction. Now, importantly, this is and again, I just want to keep hitting this point. This is only federal regulation. Right. If the state, wherever this was located, um, can regulate it, you know, if the state has regulations, then the state can regulate it. Okay. But we're talking about federal jurisdiction here. The Supreme Court said no. But what might what I think is the most interesting about this is it was A54 decision. This was a close decision. There were four US Supreme Court justices who thought that the Army Corps of Engineers, the federal government, had the power to regulate a filled in quarry pit as a wetland. Um, again, that was not the outcome of the opinion. The outcome of the opinion was that that was an overreach and the Army Corps couldn't regulate it. But. But it was close. Then in 2006. Probably one of the most famous decisions came out, which is rapanos. And again, this is Rapanos versus United States. And in that case, a developer owned the land. Again, that was miles away from any water body. So it kind of sounds like the Swansea case, except that in this case, the land that the developer owned and that he wanted to develop, he wanted to fill in this this palustrine wetland area. There were little drainage ditches, little drainage ditches that fed into a little bigger drainage ditches that fed into a tributary that fed into a river, which river was undoubtedly a water body, a water of the United States. It was navigable. So. The question before the court was. Is land that's not directly connected, not adjacent to a traditional navigable water body, but yet has some connection to it through this series of small little ditches that go to two bigger streams and etcetera. Can that be regulated? Can that be regulated? By the federal government. There was no majority decision by the Supreme Court here. Instead, the court put out what they call a per curiam decision, which means a decision that's issued in the name of the court, which is different than most decisions. Most decisions are, you know, one particular justice writes it, and then other justices either join with that or they or they dissent. In this case, Scalia, the late Justice Scalia, was adamant that this is not an order of the United States. The other some of the other justices said, yes, it is a order of the United States, but they came out in their per curiam decision with what they call the significant nexus test. And this is it's been very famous and it's in environmental law called the rapanos test or the Rapanos significant nexus test and the test to determine whether or not. The Army Corps of Engineers can regulate a wetland. Is this is there a significant nexus between the wetland and a water of the United States? Is there a significant nexus there? And if there is. The Army Corps can regulate it. Now, that again, is extremely vague. It's almost just getting back to the initial problem with Section 404 had, which is what what is the significant nexus. And so it was a very case by case analysis. The court also directed the Army Corps to develop and create regulations to define this, say, okay, Army Corps, we've told you that you can regulate something that has a significant nexus now, create regulations to determine what that significant nexus is. And the interesting thing is for years and again, this was 2006, the Army Corps tried very hard to do that, and they would develop a set of regulations and they would be almost, almost ready, almost done to have this signed into law. And then a presidential election would happen and a different party would come into power. That had a different view. And it it happened several times. Right. This happened as presidential administrations changed. The work that was almost complete was was scratched and sent back to the drawing board. And the Army Corps has never come out with has never been able to actually get signed into law to sign into regulation. What exactly is significant nexus is it's just gone back and forth and back and forth. And so the result of that was we've been under the rapanos significant nexus test since 2006, up until May 25th of 2023, and everything changed one month ago. Sackett versus EPA and it's not even out on the on the reporters yet. I looked on Lexis maybe two weeks ago and it wasn't out yet, but I was able to get the decision through another through another route. But again, this is extremely recent as I'm recording this 598 us and we don't even have the page number yet. So again, this the the scenario should sound pretty familiar here. This case was the Sacketts were landowners and they were filling in a lot. Um, with dirt to build, to build a home. Okay. It didn't appear that this lot was. It is not. Let me just say this. It's not connected to a traditional water body, but this lot is near a ditch that fed into a creek that fed into a lake. Okay. And the lake is a navigable lake, so it must be a big lake. Um, and the EPA found out that these homeowners were dumping dirt into into a wetland, and they cited them, cited them for doing that. And this went to the district court. The landowners brought the case to the district court to essentially appeal the EPA's decision. And the district court found for the EPA and said, yes, under the Rapanos significant nexus test, this can be regulated by the federal government. And so, yeah, you get cited and you can't fill in this wetland. Seconds That was appealed to the ninth Circuit Court of Appeals and the Ninth Circuit upheld the district court again, saying, yep, under the significant nexus test, under Rapanos, this can be regulated by the federal government. And essentially you cannot develop this cannot develop this property in the way that you want to. Of the Supreme Court was argued and like I said, the decision was issued very recently and the Supreme Court reversed. The Supreme Court said, no, that's a step too far. And the opinion is about 80 something pages long, which includes the dissents. So the actual opinion isn't that long, but it's a pretty good read if you're interested in this topic at all, because it actually analyzed all the long history of the waters of the United States cases. It goes through some of the cases that I that I mentioned previously to you. It talks about certainly the rapanos test. It gives the history of the Riverside Bayview Homes case and the Swansea case. And essentially the court said, look, we're we've been under this rapanos significant nexus test for a long time, but it's vague and it's overbroad. Okay. It it can't be it can't be the law because nobody knows what it is. Right? The significant nexus test is just not clear enough for people to be able to follow. And the result was that the Supreme Court said the Clean Water Act and this is the law now, as of a month ago, I'm going to read it read this quote verbatim Clean Water Act extends only to wetlands that are, as a practical matter, indistinguishable from waters of the United States. In other words, wetlands have to really look like waters of the United States. It can't be something out miles and miles and miles away from from a water of the United States, but maybe connected in some very, very small way. It really has to be, according to the Supreme Court, indistinguishable from waters of the United States. And the court went on and said to assert jurisdiction over an adjacent wetland under the Clean Water Act. And think about that to an adjacent. Well, they're saying again, the wetland has to be touching, essentially touching a water of the United States and even then to assert jurisdiction over an adjacent wetland under the Clean Water Act, the federal government has to establish two things. One, that the adjacent water body is a water of the United States, which they define as a relatively permanent body of water, which is connected to a traditional interstate navigable waters. In other words, let me try to put that in better in clearer words for you. The wetland has to be literally touching. Some sort of water body that is undoubtedly a water of the United States. It's a permanent water body that is used in Internet, that is used in commerce, and the wetland has to have a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. So it can't be something that just maybe two days a year because the tide came up really high or something like that. This has to be something that's the wetland actually has to be pretty much connected to what you would think of like as a navigable river or a huge lake where commerce takes place or obviously the ocean. Um. And so we're still trying to determine the effect of this, right, Because the decision just came out. So what is the practical effect of of this decision? It certainly seems like it has greatly reduced the the jurisdiction of the Army Corps of Engineers that they're not going to be able to regulate. Even things that they had been regulating a lot in the past, like those palustrine wetlands. It's hard to for me. And again, we don't know how this is going to play out yet, but it's hard for me to really imagine a plus wetland. That could be regulated by the by the federal government because, again, they're typically not close to not close to traditionally navigable water bodies. So what's the effect going to be? We're not we're not sure yet. But again, it certainly seems like it's going to be a reduction in the federal government's federal government's authority, again, to keep ringing the same bell. But that doesn't mean that you can just go start dumping dirt into wetlands, okay, because they're probably going to be regulated by your state. And and states in some ways have even more of a vested interest in protecting their own land than the federal government does. So states can sometimes be even even harsher than the federal government, and for good reason. All that to say don't forget about the state regulation, but this Sackett versus EPA case is really. Pardon the pun. It's groundbreaking. It's earth shattering, if you will. Amongst amongst environmental lawyers. But we're still waiting to see what the what the practical effect of it is going to be. Okay, So let's say. You have land and you want to do some development in it. You want to dump some some dirt, some fill into it and and build a house. And let's say for the sake of argument that this is indisputably in an area that is regulated by the by the federal government. It's in a wetland that's adjacent to a big traditionally navigable water body. Um, the first thing that I would recommend that you do is hire an environmental consultant. And I mentioned this sort of towards the beginning of the brief. There are, there are people, there are engineers, environmental consultants who know how to determine whether or not your area is is a wetland or not. Right. They use those three characteristics that we talked about. They look for the type of vegetation, the hydrology, the soil saturation levels, and they will be able to tell you those environmental consultants can if you're in a wetland or if you're not. And more importantly, to delineate where those lines are, you know, this area of your property is a wetland. This area of your property is not a wetland. But those are people that are hired by by you, by the person who wants to develop, to develop the land, and they work for you. So the what we call the wetlands delineation, where they draw the lines and say this is a wetland, this is not that's not going to be the final that's not going to be the final authority. Rather, that wetlands delineation will be submitted along with your permit application to the probably to the Army Corps of Engineers. And the Army Corps of Engineers will then come out and they'll do a site visit and they'll look at that wetlands delineation that your consultant did. And invariably what will happen is being a little cynical, but this is what usually happens is the Army Corps says, no, there's more wetlands here than your private consultant said, and they'll usually be some negotiations back and forth between between the the permit applicant and the the environmental consultant that did your private wetlands delineation and with the Army Corps of Engineers and they'll usually come out with something kind of in in the middle. Okay. Um the Army Corps will put out initially what they call a preliminary jurisdictional determination or a preliminary, which is just the Army Corps saying, look, we think this is this is the area that can be regulated. This is the area of wetlands. And eventually the Army Corps will issue a final jurisdictional determination, which they just call a J.D. And that will again be saying this is the area that's regulated by the federal government, because this is the area on your property where wetlands exist. If you as a private property owner, as a private citizen, disagree with the Army Corps jurisdictional determination, you can appeal that. Okay. There's an appeal process for that, which is under the Administrative Process Act. There's first an appeal within the agency within the next higher level of the Army Corps. And if you don't like that, then there's an appeal process to the to the district court, to the federal district court. I will say that just like any other appeal, and particularly any other administrative appeal, there's a process that has to be followed to the T. And the standard of review that courts give to the administrative agencies is is pretty high. It doesn't mean that you can't win, but it does mean that that it's kind of difficult to win, frankly. But but but it is possible. And we saw the second case. Right. It is possible to win. But point being, if you want to appeal the Army Corps of Engineers jurisdictional determination, you have to do it exactly right. So, please, if you're not an attorney, consult an attorney that knows how to how to do this. There's also usually a state. A state process as well in Virginia. And I'm just going to speak about Virginia. I don't know how other states do it, but this is actually as much as people talk about bureaucracy is not working and things like this, we have a really, really good system for this. There's a state agency in Virginia called the Virginia Marine Resources Commission or the MRC. And if a property owner wants to do something that's in a wetland or having to do with rivers, lakes, whatever that's owned, that's within the Commonwealth of Virginia, it's just one permit application that goes to the state agency, and then our state agency will farm that application out to all the other associated agencies, including the Army Corps of Engineers, maybe the EPA, maybe Fish and Wildlife, if there's issues with endangered species and to the local wetlands boards, if that's going to be a factor. I don't know how the other states do it, but hopefully there's a process like that. If not, then please figure out what the process is in the state where you live. But very importantly, before you start filling in wetlands in a regulated area, you need to get permission, certainly from your state and maybe from the federal government, depending on depending on where you are, depending on whether or not you're in federally, federally regulated wetlands. Okay. We've been talking about permits. These are permits issued by the by the federal agencies and and or by the state agencies. There's two basic types or categories of permits, and those are called general permits and individual permits. Everybody likes to use general permits. They're much preferred because they're easier, they're quicker and they're cheaper. And what that means, what a general permit means is if your project meets certain criteria, it's automatically going to be covered under a permit. Okay. Federal general permits are called NWP, which are nationwide permits, and there's a lot of them. I've listed some of them. This is not all of them, but I listed some of some of them under on the left side of your screen there. One of the most common ones that we see a lot is an NWP 29, NWP 29 General permit allows you to fill up to half an acre for residential development. So if you're in a wetland area and you say, Hey, Army Corps, I want to fill in this, I want to fill in 0.49 or 0.5 acres, the Army Corps will look at that, do the wetland station, etcetera, and probably end up issuing you an NWP 29 and you can go and do that. Um. The NWP criteria are reviewed every five years and sometimes they do change. For example, the 29 which I just talked about, the NWP 29 for a long time was half an acre and then at some point it went to only a quarter of an acre, 0.25. And then fairly recently it went back to a half an acre. So it goes back and forth every five years. You have to look at that just to make sure that you're under the most current version of the Army Corps guidance. But. But those are preferred, right? Because Because it's fairly simple. It's fairly it's not simple, but it's much more simple than what I'm going to talk to you about in a second, which is an individual permit. Um, but everybody likes to use general permits if possible. However, if if your project does not qualify for a general permit, let's say instead of filling in a half an acre, you want to fill in more than half an acre. You may have to or you will have to apply for what we call an individual permit. An individual permit is more expensive for the applicant. It's more time consuming. It requires a lot deeper level of analysis and survey and study because it's not like a blanket approval. It's a very site specific, um. And its greater risk to the applicant. Because and mean by risk. Mean risk. That is going to be denied because frankly, there's more there's more involvement, right? There's more there's more people looking into what to what you're doing. Everyone certainly likes to use general permits. And even the even the regulators like to use general permits when they can. But it's getting a little bit harder to use general permits to fill in wetlands. And the reason for that is because so much of them have already been developed. They can then can be developed under the general permits. So as we develop more and more and more. It's more and more likely, I think, as we go forward that you're going to see more individual permits, which again, are are more time consuming and more costly. But it's not as costly as disobeying the law, which we'll talk about in a second. Okay. So important to remember that even if you've gotten your permit, even if the feds and the state have signed off on your ability to destroy wetlands, essentially, if you're filling them in, you're destroying them, you still have to mitigate that loss. Okay. Usually at a 3 to 1 ratio and there's there's ways to do that. You can number one, probably the most common thing that people do is they purchase credits from a mitigation bank. What is a mitigation bank? A mitigation bank is an area of land that's privately owned, and usually it's owned by an environmental engineering firm. And this area of land at some point in the past used to be a wetland and then it became filled in or destroyed. And these firms have bought that area and they are converting it back to a wetland, okay? And they're doing that at their own at their own cost. And so if you want to destroy wetlands somewhere else and you're living in a place where there's a mitigation bank nearby, you can actually pay money to these private firms. And that money will be used to continue restoring the wetland in the mitigation bank area, the area that they privately own. And and you're probably going to pay more to that firm than it actually requires to do that. In other words, there's some profit motive there, right? The firms, the engineering firms that are doing this, that are converting filled wetlands back to wetlands. Are getting getting some money from it and they should. And frankly, this is a really good example of how free enterprise capitalist system can work with the government to encourage environmental responsibility and also allow it'll allow people to develop property in wetlands, but at the same time be restoring wetlands somewhere else. And the companies will make some money from it too. If there's not a mitigation bank available where you are, sometimes they'll allow you to pay a fee that may be the same amount or that you would have paid to the mitigation bank, but actually pay that to your local government, like to your local wetlands boards. And another way to do it, if you don't want to do either one of those things is you can actually do on site mitigation, which means that you can, if you're destroying or filling in a wetland on one part of your property, you can sort of create a wetland on a different part of your property. I think that's not very commonly used. I haven't actually seen it being used. One reason is because I think you'd have to have a really large piece of property in order to be able to do that. And secondly, it's difficult. It's expensive, and it it will be monitored by the agencies, the federal and state agency for ten years, the new place that you created to make sure that you have actually, in fact, created a new wetland as you were supposed to do. So let's say the agency is taking a hard line on you. They've issued you a violation or they've denied your permit. What can you do? And this is important because I've done a lot of environmental cases, and I can tell you that really nobody ever intentionally got in trouble with the government. Right? They either just didn't know they started doing development on their property or maybe they kind of knew, but they didn't really think it was that big of a deal. What kind of is a big deal? Because when the federal and the state government come after you for environmental violations, it can be it can be pretty serious. So I would if I were you and you're in this situation, ideally you'll be in the situation of you're applying for a permit and they're giving you a hard time not issuing it. Worst case scenario is you already done something and they're they're coming after you to to fix it or maybe even to prosecute you. You should hire an environmental consultant. Some of those engineers that I talked about. And you should certainly hire an environmental attorney to help you through this process. You need to and that's the team that you need. You need the environmental consultant and the attorney. You can keep negotiating with the agency via your consultant and via your attorney. Of course, you can just acquiesce and do what it is the agency wants you to do. You can give up and just not develop the land or pay the fine or whatever it is. Or again, if you're really aggrieved, you can you can take it into the court system. And I'm nearing the end. I just want to touch on this enforcement. I talked before that there are severe penalties for filling in wetlands, for doing things in wetlands that you're not supposed to do. You can be fined up to $10,000 a day, up to a maximum of $125,000, um, administratively, which means not even in court. That can be done by the agency. If you go to court, you can be if they take you to court, you can be fined up to $25,000 a day and the court can issue an injunction telling you to stop doing what you're doing. There's also criminal penalties and you can read them there. Uh, I haven't seen a criminal penalty be imposed. I think it would have to be a pretty bad violation, but it certainly is possible. And you can be fined big money and you can be imprisoned for up to 15 years. Worst case scenario for knowing endangerment. Again, I haven't seen that, but I feel sure that it that it has happened. Another thing that you might fall subject to is even if the state and federal agencies don't come after you, your fellow citizens might. There's something called a citizens environmental lawsuit. If a citizen believes that a state or federal agency, let's say the EPA isn't doing their job, the citizens environmental lawsuit actually allows the citizen to step into the shoes of the EPA or into the shoes of the agency and enforce in court as though they that private citizen were the EPA. I keep saying EPA, but the federal agency. Maybe it's the Army Corps of Engineers. Maybe it's your state regulatory agency. Um, it's incredibly complicated lawsuit, but. But they have been effective. We've actually used one at my firm a couple of years ago. Um, effectively, I will say, if you're thinking about doing that again, highly recommend that you get an attorney that's experienced in that area because it's a, it's a step by step by step process, lots of different notices that have to be filed and they have to be filed. Exactly right. And if you miss one thing, then you can lose. Um, you can lose your suit. I was speaking there as though you were the person filing the citizens environmental lawsuit. But on the other on the other side of it, if you're a person who's committing violations and you have been lucky enough that the federal or state government haven't come after you, there's a potential that your fellow citizens can via the citizens environmental lawsuit. So just be aware of that. And this is just some additional resources. Some of this is Virginia specific, but if you're interested in it, then then it's there for you. Thank you very much for your attention. If there are any questions, the next slide actually has my contact information, my email and my phone number. I hope you've enjoyed this presentation and good luck to everyone. Don't fill in any wetlands without permission.