Default Author Photo

Royal C. Gardner

Royal C. Gardner is Professor of Law and Director of the Institute for Biodiversity Law and Policy at Stetson University.
Photo credit: Supreme Court Pediment by Flickr.com user Kevin Harber

Executive Orders for 2014: Royal Gardner

Back in November of 2013, President Obama issued an executive order on climate preparedness. Because executive orders circumvent...

Back in November of 2013, President Obama issued an executive order on climate preparedness. Because executive orders circumvent Congress within certain limits, they allow the president to implement action to address climate change and other issues. A few weeks ago I asked some of our authors to create their own executive orders to improve our handling of the environment; this is the last installment in the series.  

Transparency on Wetland Mitigation Requirements and Results

by Royal Gardner Back in the day, President Carter issued an Executive Order on the protection of wetlands. Executive Order 11990 calls on agencies “to preserve and enhance the natural and beneficial values of wetlands” while carrying out their duties. I am uncertain what effect, if any, this EO has had on agency actions. If anyone has an example of a project that was killed or substantially modified because of EO 11990, please email me. (I’ll buy lunch for the first person who can offer a documented case.) Moreover, EO 11990 did not apply to federal permits, such as Clean Water Act section 404 permits, for wetland-destroying activities on private property. So my (modest) proposal is that President Obama issue a new EO on the protection of wetlands that extends to federal permits for activities on private property. Under the Clean Water Act, for example, when the U.S. Army Corps of Engineers grants a permit for a project that will fill wetlands, it often requires that the permittee offset the environmental harm through “compensatory mitigation” (e.g., restoring wetlands elsewhere). In particular, the new EO should focus on transparency regarding permit conditions that require compensatory mitigation, transparency on whether the compensatory mitigation is actually provided, and greater enforcement of compensatory mitigation conditions. Transparency on compensatory mitigation conditions: Currently, the Corps of Engineers includes the permit applicant’s proposed compensatory mitigation in its initial public notice of the permit application. The public notices are available (for a time) on Corps District websites, which is a good start. But once the permit is granted, public access is more limited. The permits—and thus the permit conditions, including the compensatory mitigation—are typically not available online. The permits should be published on the web to allow the public to see individual decisions and to track regional and national trends. Transparency on monitoring of compensatory mitigation projects: The Corps of Engineers requires monitoring reports on compensatory mitigation projects. The compensatory mitigation may be provided through a mitigation bank, an in-lieu fee arrangement, or the permittee itself. While some monitoring reports from mitigation banks and in-lieu fee programs are available online, they all should be. Enforcement of conditions: Finally, the Corps of Engineers and the EPA, working with the Department of Justice, should bring more civil enforcement cases when a permittee (or mitigation banker or in-lieu fee program, whatever the case may be) fails to provide the promised mitigation. This rarely occurs now, although a recent case out of South Florida involving Century Homebuilders illustrates how to proceed. Improved tracking of wetland mitigation requirements and results is not only important for our nation’s aquatic resources. Many other countries are also considering adopting “no net loss” policies and biodiversity offset programs, and they should learn from our experiences. But first we need to better inform ourselves.

Photo credit: Supreme Court Pediment by Flickr.com user Kevin Harber

Exporting No Net Loss

The concept of “no net loss” of wetlands, first officially endorsed by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency in 1990, continues to spread across the globe. The latest example is Taiwan’s national Wetland...
The concept of “no net loss” of wetlands, first officially endorsed by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency in 1990, continues to spread across the globe. The latest example is Taiwan’s national Wetland Conservation Act, enacted in July 2013 after five years of discussions. The new law adopts the objective of “no net loss” of area and function for wetlands designated as locally, nationally, or internationally important. While the law emphasizes avoidance of wetland impacts, it also contemplates the use of off-site “ecological compensation” which may include wetland mitigation banks and in-lieu fee arrangements.
Royal Gardner presented Minister of Interior Li with a copy of Lawyers, Swamps, and Money while in Taiwan for a series of International Workshops for Wetland Conservation sponsored by the Taiwan Construction and Planning Agency. Royal Gardner presented Minister of Interior Li with a copy of Lawyers, Swamps, and Money while in Taiwan for a series of International Workshops for Wetland Conservation sponsored by the Taiwan Construction and Planning Agency.

It is instructive to note, however, that the United States still has not achieved “no net loss” domestically. A forthcoming report by Thomas Dahl (U.S. Fish and Wildlife Service) and Susan-Marie Stedman (NOAA Fisheries) will provide updated data on wetland trends in U.S. coastal watersheds from 2004-2009, and the picture is not pretty. Wetland losses in coastal watersheds in the contiguous United States increased 25% from the previous reporting period. From 2004-2009, the average annual rate of loss was more than 80,000 acres, with declines in both saltwater and freshwater wetlands. The report estimates that net losses of saltwater wetlands were 95,000 acres and net losses of freshwater wetlands exceeded 265,000 acres. The key drivers of wetland losses identified were residential and infrastructure development, as well as silvicultural activities.
International Workshop for Wetland Conservation in Tainan, Taiwan International Workshop for Wetland Conservation in
Tainan, Taiwan

Thus, while we export the concept of “no net loss” abroad, meeting that goal remains elusive at home.
Photo credit: Supreme Court Pediment by Flickr.com user Kevin Harber

Lawyers, Swamps, and Money: Koontz and Off-site Mitigation

Lawyers, Swamps, and Money is a periodic blog by Royal C. Gardner, author of...

Lawyers, Swamps, and Money is a periodic blog by Royal C. Gardner, author of Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics.

As the dust settles after the end of the U.S. Supreme Court’s latest term, the case of Koontz v. St. Johns River Water Management District is causing some uncertainty, if not angst, among wetland regulators and environmental proponents. Under its previous rulings, the Court has held that certain government “demands” for property rights in exchange for permits run afoul of the Constitution’s Takings Clause. These permit conditions must have a nexus and rough proportionality to development impacts; otherwise, they are deemed unconstitutional exactions under what is known as the Nollan-Dolan standard.  Koontz involved the question of whether the Nollan-Dolan standard applies to off-site mitigation and the expenditure of funds. In a 5-4 opinion, the Court replied in the affirmative to both questions, and private property rights advocates rejoiced. Koontz, however, is a complicated decision, and it is just as important to note what the Court did not decide. The Court stated that it was not deciding that the Florida statute that Koontz sued under applied to a Nollan-Dolan claim (so that may be dealt with on remand). It did not decide whether the water management district’s “demands” were specific enough to trigger a Nollan-Dolan claim or whether they were simply part of permissible negotiations. Even if the “demands” did trigger a claim, the Court did not decide that the requested off-site mitigation lacked a nexus or rough proportionality to the impacts. And even if there was a Nollan-Dolan violation, the Court declined to say what the remedy might be. So what was the Court willing to decide? It recognized that agencies can insist “that landowners internalize the negative externalities of their conduct.” It noted that that permitting authorities can “insist that applicants bear the full costs of their proposals[.]” And it stated that the government has a “legitimate interest” in wetland mitigation―but the mitigation must have a nexus and rough proportionality to the development impacts. What does this all mean for agencies, developers, and the public? As one learns in law school, the answer is always: “It depends.” But even Justice Alito agrees that agencies can still require developers to offset the “full costs” of the environmental impacts of their projects. The key is ensuring that the agency can demonstrate the linkage between the permit conditions and impacts. (For example, an agency might wish to point out the dismal record of mitigation failures to justify mitigation ratios higher than 1:1.) The danger is that agencies might take the path of least resistance and grant permits with fewer mitigation conditions.