"'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean - neither more than less.' 'The question is,' said Alice, 'whether you can make a word mean so many different things.' 'The question is' said Humpty Dumpty, 'which is to be master - that's all.'" [1]

     It takes a good deal of determination and a bit of patience to master the intricacies of wetlands terminology. Indeed, one may occasionally wonder if we have followed Alice through the Looking Glass. Taken literally, "wetland" is an oxymoron. In Webster's New World Dictionary, 2nd College Edition, "land" is defined as "the solid part of the earth's surface not covered by water." The real world, however, can rarely be reduced to the simple proclamations of dictionaries, it is almost always much more complex and evolved - defying definitions and (often) reason. [2]  Not only are wetlands difficult to define, they are difficult to protect. Wetlands are a vital national natural resource rapidly disappearing under the onslaught of developmental pressure and economic development:

The coastal wetlands of Louisiana are disappearing at the rate of forty square miles each year. Waterfowl breeding grounds that once spread from Minnesota to Montana have been reduced to a thin wedge in North Dakota. It seems no coincidence that of the 595 plant and animal species listed in the United States as threatened or endangered, nearly sixty percent rely on wetlands during some part of their life cycle. An estimated twelve million acres of bottomland hardwood wetlands along the Lower Mississippi River dropped to five million in a half-century. Only ten percent of California's wetlands remain.  

These losses are mirrored in every state. Of an estimated 215 million acres of wetlands found in America at the time of European discovery, fewer than half remain. They continue to disappear at a rate approaching 300,000 acres per year (footnotes omitted). [3]

     Wetlands jurisdiction is much like the underlying protected resource: a mosaic of interdependent entities and relationships, carefully balanced in a compromise subject to severe disruption by the careless missteps of the unwary. If ever there was an appropriate regulatory metaphor for the complexity of wetland ecosystems, it is the development of wetlands jurisdiction over the last thirty years. This jurisdiction may be traced from the headwaters of constitutional authority, through the backwaters of statutory interpretation and into the mudflats of regulatory enforcement at both the federal and Florida levels. After first laying a path through these elements of jurisdiction, this paper focuses on the delegation of the Clean Water Act's section 404 wetlands permitting authority to the states and evaluates whether that authority should be delegated by the U.S. Army Corps of Engineers to the State of Florida. 

I. FEDERAL JURISDICTION

     A. Constitutional Grant of Authority

     Federal authority to regulate wetlands on private property, like that of all other federal environmental regulations, is based on the Constitution's Commerce Clause (Article I, § 8, cl 3), which states "The Congress shall have Power To ... regulate Commerce ... among the several States...."

     Courts have grappled with defining the outermost limits of Congress' authority to regulate privately owned wetlands though the Clean Water Act (CWA). [4]  Although navigable waters and adjacent wetlands have been held to fall squarely within that authority, [5] several categories of wetlands have produced test cases, including: artificially created; seasonal; and isolated or non-adjacent. [6]  The courts have consistently held artificially created and seasonal wetlands to fall within the CWA's jurisdiction. [7] 

     Isolated wetlands, however, continue to be a controversial area of disagreement between the courts. The principal legal issue in dispute is the breadth of the Commerce Clause, as applied to these isolated wetlands. Isolated wetlands are within "Commerce Clause" waters if they affect, or have the potential to affect, interstate commerce. The jurisdictional issue over these isolated wetlands is one of the evidence needed to establish the required nexus between the wetland and interstate commerce. [8]  

     The U.S. Supreme Court's conservative majority fired a clear shot across the bow of broad federal jurisdiction as this paper was going to press. Although the Court declined to reach the constitutional jurisdictional issue in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, [9] it clearly indicated in dicta that if it had, it likely would have been restrictive in its interpretation. At issue was the Corps rule extending CWA jurisdiction to isolated wetlands used by migratory birds (the "migratory bird rule") under the authority of 33 CFR §328.3(a)(3) (1999). The petitioner challenged both the statutory authority of the rule under the CWA and, in the alternative, the federal jurisdiction over isolated wetlands under the Commerce Clause. [10]  In its ruling, the Court's majority first stated that the Clean Water Act was limited to navigable and adjacent to navigable waters [11] (thus excluding jurisdiction over isolated wetlands). Having decided to reverse the Seventh Circuit on statutory grounds, the Court did not reach the constitutional issues. In dicta, however, the majority stated:

Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use ¼. Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to 'recognize, preserve, and protect the primary responsibilities and rights of the states ¼ to plan the development and use ¼ of land and water resources ¼.' We thus read the statute as written to avoid the significant constitutional questions raised by respondents' interpretation, and therefore reject the request for administrative deference (internal citations omitted). [12]

     Although the majority's language is troubling, as dicta it does not specifically reverse the current trend of the circuit courts to find a broad wetlands jurisdiction under authority of the Commerce Clause. These cases include the Seventh Circuit's decision on the constitutional issues in Solid Waste Agency, not reached and thus not reversed by the U.S. Supreme Court. 

     In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, [13] plaintiff SWANCC had argued that the Commerce Clause authority did not extend to isolated wetlands jurisdiction, comparing that jurisdiction to that of the Gun-Free School Zones Act struck down by the U.S. Supreme Court in U.S. v. Lopez. [14]  The Seventh Circuit, by unanimous decision, disagreed, stating: 

This court has noted previously that Lopez expressly recognized, and in no way disapproved, the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce. [15]

     The Seventh Circuit's decision in Solid Waste Agency was consistent with and followed its earlier decision in Hoffman Homes Inc. v. Administrator. [16]  In Hoffman, the court held that either the use, or potential use, of a wetland by migratory birds constitutes a sufficient nexus to interstate commerce to justify Commerce Clause authority. [17]  Although the government prevailed on the legal issues, it lost on the merits of the case because it had not presented substantial evidence to demonstrate potential use. [18]

     The U.S. Supreme Court had also earlier denied cert. on a 1995 Ninth Circuit decision affirming section 404 jurisdiction over isolated waters, based on the Commerce Clause authority underlying the CWA. In Leslie Salt Co. v. United States, [19] the Ninth Circuit held the record below demonstrated the seasonal inundation of the Leslie Salt company's salt-crystallizer ponds provided a habitat extensively used by migratory water fowl and that this habitat use was a sufficient basis for interstate commerce clause jurisdiction. [20]

     The Fourth Circuit, however, has reached a conclusion contrary to that of the Seventh and Ninth circuits. In United States v. Wilson, [21] the Fourth Circuit criticized isolated wetlands jurisdiction, holding that reliance on "potential" for interstate commerce is not sufficient to fall within the Commerce Clause's jurisdiction, which requires "substantial" impact on interstate commerce. [22]  In response to the Wilson case, the Corps and EPA issued guidance that the Fourth Circuit's limitations on wetland's jurisdiction would only be recognized and followed in states within the Fourth Circuit. [23]

     Thus there appears to be tenuous balance of circuit court decisions favoring broad federal jurisdiction over private wetlands. Given the Supreme Court's dicta in Solid Waste Agency and the Fourth Circuit's Wilson decision, however, it is likely that conservative jurists will continue in their quest to limit the scope of wetland protection afforded by the Clean Water Act. Such conservative judicial activism is hardly surprising; wetlands protection has been, and continues to be, a focal point of political debate. The Clean Water Act's statutory authority has been one developed through broad policy compromises seeking to balance the interests of promoting commerce (private development) and protecting wetlands.

     B. Statutory Enabling Legislation

     Federal wetlands jurisdiction can be found at the confluence of two potentially conflicting public policies. Traditionally, navigable waters of the United States (including contiguous wetlands) have been regulated for the purposes of maintaining navigation necessary for interstate commerce. [24]  For over a century, the U.S. Army Corps of Engineers has been responsible for the dredging of channels and maintenance of navigation structures (principally buoys and locks) under authority granted by the Rivers and Harbors Act of 1890 (RHA). [25]  

     In the late 1960's and early 1970's, Congress reacted to the need for increased environmental protection by passing major new legislation, including the 1969 National Environmental Policy Act, [26] the 1970 Clean Air Act [27] and the 1972 Clean Water Act (CWA). [28]  The CWA establishes a policy of restoring and maintaining the "chemical, physical, and biological integrity" of United States waters by eliminating all pollution discharges by 1985.  [29]  One of the principal means of achieving that goal is through section 402 of the Act, which establishes the National Pollution Discharge Elimination System (NPDES). [30]  Authority to administer the NPDES program was granted to the then recently created Environmental Protection Agency (EPA). [31]

     Concern was expressed in the CWA's Congressional debate over whether EPA's new authority would interfere with the Corps' duties under the RHA. [32]  The maintenance of channels and harbors necessary for interstate shipping requires an on-going program of dredging and thus a large amount of spoil material requiring disposal. Most often, the material is disposed of elsewhere within the "waters of the United States." [33]  Some Congressional representatives were concerned that EPA's administration of the NPDES program would lead to an undue restriction on these dredging operations. [34]  

     Conversely, concern was also expressed that the Corps may not have the environmental ethic to adequately administer a clean-water regulation (the NPDES) in navigable waters. [35]  Conflicts would inevitably arise in establishing priorities and policies for its RHA (improved navigation) and CWA (drinkable, fishable and swimmable) regulations. The compromise reached by Congress, as expressed in section 404 of the CWA, is that the Corps administers a dredge and fill permitting program in navigable waters, subject to EPA's policies and clean water standards and an EPA authority to veto a Corps section 404 permit. [36]  

     Having reached that compromise of split jurisdiction, Congress never addressed the much more difficult question of how far does the CWA (including both sections 402 and 404) authority reach? The CWA prohibits the "discharge of a pollutant by any person," defining that "discharge" as "any addition of any pollutant to navigable waters from any point source." [37]  "Navigable waters" are defined as "the waters of the United States, including the territorial seas." [38]  Neither "waters of the United States" nor "wetlands" are defined in the Clean Water Act.

     C. Regulatory Enforcement

     Congress left it to the Corps and EPA to define "the waters of the United States," within which "wetlands" would be found. This definition establishes the reach of the entire CWA, including both the section 404 (dredge and fill) and section 402 (NPDES) programs.  [39]  In its initial implementation of the section 404 program, the Corps followed a narrow interpretation, essentially limiting its review to the navigable waterways within its RHA jurisdiction. [40]  That limited interpretation was successfully challenged in Natural Resources Defense Council v. Callaway, in which the court instructed to Corps to follow Congress' legislative intent of a jurisdiction bounded only by Constitutional limits.  [41]

     Following Callaway and a 1979 Opinion by U.S. Attorney General Benjamin Civiletti (stating that EPA has final authority to determine jurisdictional boundaries under the CWA), the Corps and EPA entered into a series of Memoranda of Understanding (MOU) on determining jurisdictional boundaries. [43]  Under these MOUs, the Corps determines section 404 jurisdictional boundaries, subject to EPA's superseding a determination in special cases. [44]

     Currently the EPA and the Corps have the same broad definition of "waters of the United States."  [45]  These waters include:

• all interstate waters, including interstate wetlands;

• all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce;

• all impoundments of waters that fit these definitions;

• tributaries of any defined waters;

• the territorial seas; and

• wetlands adjacent to waters, other than adjacent to other wetlands.  [46]

     This broad definition, that includes adjacent wetlands, was unsuccessfully challenged by a wetlands owner in United States v. Riverside Bayview Homes, Inc. [47]  The developer challenged the Corps' jurisdiction over "adjacent wetlands" as being beyond the scope of authority granted by the CWA. In its decision, the U.S. Supreme Court confirmed that Congress intended a broad grant of authority to regulate pollution within "the waters of the United States," including the aquatic ecosystems associated with those waters. [48]  The Court stated Congress intended the Corps' regulatory authority to include adjacent wetlands, even if no surface water or hydrological (groundwater) connection existed. [49]  "Even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water [the] wetlands may affect the water quality of the adjacent lakes, rivers, and streams." [50]  

     Given the degree of interaction between ground and surface water in Florida's very permeable karst geology, it is logical that even deposits of pollutants into groundwater that may migrate to surface waters would fall within CWA jurisdiction. This issue was addressed in United States v. Banks, [51] in which the Court found:

Wetlands, even if separated from other waters of the United States by dikes, barriers, natural berms, beach dunes and the like, are still considered 'adjacent wetlands'.... [T]he government established that such a connection exists through ground water and through surface waters during storm events . . . [this] supports a finding of adjacency. [52]

     With this federal mosaic of authority, policies and regulations for comparison, this article next turns to Florida wetlands jurisdiction. Similar to federal jurisdiction, Florida wetlands policies, statutes and regulations are a thicket of complementing, often overlapping jurisdiction. Unlike the federal jurisdiction, however, the State laws directly and explicitly protect wetlands as important natural resources. Thus these laws go well beyond restrictions on degrading water quality by regulating discharge of pollutants into water. They also apply to dredging and draining of the wetlands themselves, which the federal regulations do not reach. [53]

II    FLORIDA JURISDICTION

     A.    Constitutional Authority

     Article II, Section 7 (a), of the Florida Constitution states: "It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources." [54]

     B.    Statutory Authority

     Pursuant to the Article II, Section 7 (a), the Florida Legislature adopted the Florida Water Resources Act of 1972, codified as Chapter 373, Water Resources, Florida Statutes. Section 373.019 establishes Florida's statutory jurisdiction over wetlands by defining "waters of the state" and "wetlands." [57]

     Prior to 1994, surface "waters of the state" were covered by Florida Statutes, Chapter 373, Part IV, Management and Storage of Surface Waters (MSSW) and "wetlands" by Chapter 403 Wetland Resource Permits for dredge and fill activities in wetlands. The Chapter 403 wetland resource permitting program, originally established by the Florida Environmental Reorganization Act of 1975, was modified in 1984 under the Warren S. Henderson Wetlands Protection Act. In 1993, the Legislature enacted the Florida Environmental Reorganization Act (FERA), incorporating the former Chapter 403 wetland resource permits into Chapter 373, Part IV to create a streamlined Environmental Resource Permit (ERP) program.  [58]  The Legislature also concurrently merged the Departments of Environmental Regulation and Natural Resources into a single new agency - the Department of Environmental Protection (DEP). [59]

     FERA included some grandfathering provisions that retain the former Wetland Resource and MSSW permitting programs for certain activities listed in subsections 373.414(11)-(16), Florida Statutes, throughout the state. In addition, the ERP program was not implemented within the Northwest Florida Water Management District (in the panhandle of Florida), where the wetland resource program and an MSSW permitting program for agriculture, silviculture, and dam safety remain in effect, as stated in section 373.4145, Florida Statutes. 

     C.    Regulatory Enforcement

     Part IV, Management And Storage of Surface Waters, sections 373.403?373.466, Florida Statutes, delegates legislative authority to the Environmental Review Commission, through the Department of Environmental Protection and the Water Management Districts, to develop rules consistent with the surface water protection mandates of Chapter 373.

     In the interest of streamlining the ERP review process, DEP and four of the five Water Management Districts (excluding Northwest Florida) have entered into operating agreements to determine which agency shall review and grant permits for a range of activities. Generally, the agreement contains a short list of specific activities that DEP will review, the remainder falling within the District's authority. [60]  DEP also retains the right to assume review authority in special cases. [61]  Pursuant to Chapter 373 and the Operating Agreements, each of the Districts (except Northwest Florida) has developed ERP rules under Chapter 40, F.A.C.

III COMPARISON BETWEEN FEDERAL AND FEDERAL LAWS

     A.    Constitutional Authority

     This very broad, cursory overview of the respective federal and Florida wetlands jurisdictions highlights several key differences. First, Florida's constitutional authority to protect wetlands as natural systems is much broader than the federal Commerce Clause authority, there is no question that all natural resources such as surface waters, including isolated wetlands, are covered under Florida law.

     B.    Statutory Authority

     Further, while both the federal and Florida statutes grant broad authority over "waters," the Florida Statute defines what those waters are and what "wetlands" are included in those waters. Florida Statutes protect wetlands as a natural resource and not just a means of possible point source degradation to surface waters. Part IV of Chapter 373 covers all activities in surface waters and wetlands, including dredging and draining, which are not regulated activities under the federal Clean Water Act (see discussion of Tulloch Rule and National Mining, supra). In sharp contrast, however, is the Florida agricultural exemption that appears to include the conversion of wetlands to farm land (altering the topography) that is not exempted under federal law (see discussion of respective agricultural exemptions, supra). Given these conflicting exemptions, it is difficult to assess which regulatory scheme provides a higher degree of protection for wetlands. Even more importantly, the broader scope of constitutional and statutory authority under Florida law is likely to be sharply circumscribed by differences in Federal and Florida regulatory enforcement.

     C.    Regulatory Enforcement

     Perhaps one of the most important differences in federal and Florida wetlands law is that the level of actual protection afforded to these well defined Florida waters and wetlands may be significantly less (or completely lacking) due to the "mitigation escape clause" in section 373.414(b), Florida Statutes. 

     Section 404(b)(1) of the Clean Water Act requires that wetlands be given high priority and that non water-dependent activities are presumed to be incompatible with wetlands and thus denied if there are practicable alternatives to development in those wetlands. 33 C.F.R. 320.4(b)(1) requires a "public interest review" of wetlands permit requests that must include consideration of practicable alternatives. Section 373.414(b), Florida Statutes, does not have the same degree of protection, relying instead on on-site or off-site mitigation if the proposed development violates state water quality standards or is not in the public interest. The difference is one of presumption. Under federal law, protection of the wetlands by denying or conditioning the permit is presumed. The burden of proof is on the petitioner to demonstrate that practicable alternatives are not available. Under Florida law, even if water quality standards are violated and the public interest is not served, a request is presumed to be permitted so long as the petitioner can demonstrate potential amelioration of those violations or compensation to the public interest by mitigating the adverse impacts. While protection and restoration of existing wetlands has been generally successful, creation of new wetlands is an inexact science, prone to high failure rates and a need for continuing vigilant enforcement.

The [Florida] Legislature in 1990 directed the former Department of Environmental Regulation to assess the use and effectiveness of mitigation in its dredge-and-fill permitting program. According to the agency's report, published in March 1991, the department issued 1,262 permits between 1985 and 1990 that included mitigation¼. The agency selected for review 119 wetland mitigation sites that were required to be created under the terms of 63 permits. Its evaluation revealed that only four of the 63 permits were in full compliance. In addition, the "ecological success rate" of the mitigation sites which were actually constructed was judged to be 27 percent - although the agency predicted that the success rate would improve with remedial work. [62]

     Two other contemporary studies also indicated that wetland mitigation is, in most cases, a miserable failure. "A comprehensive review of 40 completed mitigation sites permitted by the South Florida WMD revealed that only four had met all of the goals cited in their permits." [63]  "A November 1992 review by the St. Johns River WMD of 326 wetlands sites created through its permitting process indicated that less than a third had achieved the success criteria." [64]

     Taking these differences into consideration, particularly the presumption of developing wetlands in Florida, this article turns to the question of whether the federal government should delegate section 404 wetlands permitting to the State of Florida.

IV DELEGATION TO STATES

     A.    Clean Water Act Delegation Provisions

     The Clean Water Act includes a specific goal of encouraging state implementation of the federal section 402 and section 404 permitting programs. [65]  States must request delegation of the section 404 program and must meet certain conditions to be approved. [66]  The EPA, in consultation with the Corps and the Fish and Wildlife Service administers the delegation of permitting authorizations to the states. [67]  This authorization may not include traditionally navigable waters or waters seaward of the high watermark. [68]  "To be approved, a state program must include authority to issue permits that apply the same requirements and standards as federal permits. In particular, states must show that they will assure compliance with the standards of the section 404(b)(1) guidelines." [69]

     Delegation of section 404 permitting authority is subject to EPA's 404(c) review and authority. The Sixth Circuit, in Friends of the Crystal River v. U.S. Environmental Protection Agency, [70]  held that section 404 permitting authority reverts to the Corps if EPA objects to a state granted permit and the state does not amend the permit in response to EPA's comments. [71]  The Corps retains that authority even if EPA subsequently withdraws its comments. [72]

     There are two types of delegation programs in the CWA. First, sections 404(g) and (h) provide that states may assume a full permitting program, with limited geographic scope and continuing federal oversight. An important qualification of "full" delegation under (g) and (h) is that the State program must have the authority to "assure compliance with any applicable requirements of this section." [73]  Those applicable requirements include the EPA "practicable alternatives" required under section 404(b)(1), currently not required under Florida Statutes.  Second, under section 404(e), the Corps may issue a general permit, "if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental affects when performed separately, and will have only minimal cumulative adverse effect on the environment." [74]  This program also requires that "Any general permit issued under this section shall¼be based on the guidelines described in subsection (b)(1) of this section." [75]  Thus, in theory, all delegated programs will have standards similar to the federal requirements. "These restrictions were neither incidental nor accidental to the law; they reflected conscious legislative choices in balancing national, state and private interests [in protecting wetlands - choosing between environmental protection of natural resources and economic development of private property]." [76]

     As of 1992, only Michigan and New Jersey had assumed delegation under the section 404 (g), (h) program. Maryland and North Dakota had begun, and eventually abandoned attempts at delegation. [77]  As of that date, however, fifteen states were operating under a new Corps program, granted by the Corps under authority of section 404 (e). [78]  "The Corps has combined the concepts of a general permit (for 'similar' and 'minimal' activities), with a programmatic permit (for 'duplicative' state programs), and created yet a new entity, the Statewide Programmatic General Permit (SPGP)." Although no permitting authority has been delegated (simply eliminated "duplicative" permitting requirements) this authority has an effect similar to delegating section 404 regulation to states.

The use of programmatic general permits as a substitute for delegation of the section 404 program is controversial. Opponents object that general permits should not be used to exempt large categories of wetlands or wetland activities from full section 404 review. Critics also claim that the Corps joins wetlands and actions that are not minor or similar in nature under state programmatic general permits. [80]

     B.    Florida's Partial Assumption Under section 404 (e)

     On September 24, 1997, Florida received a State Programmatic General Permit from the Jacksonville District of the U.S. Army Corps of Engineers. [81]  The SPGP III was requested and granted to avoid duplicating Corps and DEP permitting for minor work located in "Waters of the United States," including navigable waters. Thus the need for separate Corps approval is mostly eliminated. [82]

     The SPGP III includes permit delegation authority for six categories of activities, each subject to a three-tier review process. [83]  Applications for proposed projects will be submitted to the appropriate DEP office for review. Limited activities (listed in the SPGP) are subject to a "green review." Any permits not meeting "green review" are reviewed by the federal agencies ("yellow review"), which may either conditionally approve state action or kick up the permit to the "red review." "Red review" permits are concurrently permitted by the state and federal agencies. [84]

     Florida and the Jacksonville District Office have also entered into a Coordination Agreement to implement the SPGP. This agreement establishes the purpose of the SPGP, procedures for implementing it, requires monitoring though self-reporting by DEP and coordination with other federal agencies by the Corps. [85]  Neither the SPGP nor the Coordination Agreement specifically mention the Environmental Resource Permits granted by the Water Management Districts. Both documents expressly exclude "those counties, or portions thereof, within the jurisdiction of the Northwest Florida Water Management District," [86]  as required by section 373.4145(1), Florida Statutes. Given that the ERP permits are not expressly included and that the State Legislature expressly excluded the Northwest Wetland Resource and MSSW permits, one may logically infer that the SPGP includes only certain DEP surface water or wetland permits granted under the ERP program and does not include the Districts' ERP permits.

     Thus it appears the SPGP is limited to certain permitting activities that are themselves a smaller subset of the State's overall surface water or wetlands ERP permitting program. This cautious approach seems to follow the intent of the SPGP program.

Properly implemented, the SPGP provides additional protection to wetlands while facilitating minor development proposals. It appears logical that if a permittee may conduct de minimus activities under an unsupervised general permit, the Corps may issue a SPGP allowing a state to permit and monitor these activities¼. The Corps has delegated review that it was not exercising. The Corps does maintain jurisdiction over more significant activities, however, and these activities do not automatically become less significant merely because they fall under a good state program. An even greater danger arises when they fall under a not-so-good state program. [87]

     C.    Are We Fine-Tuning a "Broken System"?

     The test of a "successful" SPGP appears to be whether the previous activity was not being adequately considered by the Corps and is de minimus in nature. As Houck and Rolland point out, however, there may be a temptation to expand the SPGP to include activities that are not de minimus in nature. [88]  As the previous sections on federal and Florida wetlands jurisdiction highlighted, delegation of permitting authority for activities that have a significant impact could be very detrimental to Florida wetlands, if mitigation is the presumption for wetlands permits. Although creation of new wetlands in theory would offset this destruction, such an approach is certainly riskier and requires continuing vigilant enforcement. Such enforcement would arguably be required for activities permitted under the SPGP, which must meet a state equivalent of the federal CWA public interest review test and section 404(b)(1) "practicable alternatives" test. In practice, the degree of Corps oversight required to enforce this policy would likely defeat the purpose of delegation in the first place.

     Continued delegation though expansion of the section 404(e) SPGP or complete delegation under 404(g) and (h) will likely lead to an increasing loss of Florida wetlands due to wetland creation failures that do not mitigate wetland destruction. Such wetland losses are inevitable unless and until Florida adopts a public interest review test and practicable alternatives requirement similar to federal law (as required by the section 404 (e), (g) and (h) delegation programs). If Florida's program is to be successful, it must take an active, innovative approach in protecting the wetlands that remain. In considering whether delegation should continue under 404(e), increase to "full" delegation under 404(g), (h), or be entirely discontinued, the strength of each alternative must be measured by how well it balances the two competing principles of the national public interest in wetlands with private pressures to develop economically desirable private property. [89]

     There is a strong and convincing case to be made that a federal role must continue as an effective counter-balance to the otherwise overwhelming local political pressure to develop; while noting that "limited delegation short circuits the extraordinary potential of state and local governments to participate in the necessary enterprise of wetland protection." [90]  If federal permitting remains the only method of protecting wetlands, we lose the potential of creative, innovative alternatives to complement that permitting approach.

     Thus, the proof of success must be demonstrated by the State of Florida. The success of continued delegation will lie in its ability to demonstrate political fortitude in the face of developmental pressures from real estate, agribusiness and marine industrial interests. Recent successes, such as the Save Our Rivers and Preservation 2000 (now Florida Forever) land acquisition programs are a step in the right direction. Mitigation banking, a recently created program is also a promising start. And, finally, given the State's strong agricultural presence, Florida will have to continue supporting the federal Swampbuster and Sodbuster programs to effectively protect wetlands.

     To effectively protect wetlands, however, requires that we look beyond existing permitting and the current regulatory programs to a planning and resource management model of protection. "To preserve wetlands, we must move from the model of case-by-case permitting of jurisdictional wetlands to a broader resource management model that accounts for the variability among wetlands, their dynamic character, and the interdependence of wetlands and uplands." [91]

     To be successful, wetlands protection must be fully incorporated into Florida's comprehensive land use planning and growth management systems. This is not an "either-or" proposition. Federal and state wetlands permitting must be continued and strengthened as an enforcement mechanism that will keep all parties' "feet to the flames." The innovative use of traditional state land use planning, zoning and growth management programs, however can move wetlands protection from an adversarial contest to a cooperative "win-win" solution.

     The incorporation of wetlands protection into land use planning offers a more flexible approach. Though such an approach we can plan for the total ecosystem needs of the aquatic wetland systems and associated uplands. Developers will be given more flexibility and certainty at the beginning of the development process and thus not subject to sudden unpleasant "surprises" at the permitting stage. 

     These planning, zoning and growth management programs should also be supplemented by the State's authority to condemn and acquire private property for public use. It would be inequitable for property owners to bear the full burden of meeting these important public goals. Reasonable compensation, including acquisition when necessary, must be elements of the overall package for it to be politically acceptable and successful.

     Section 404 permitting and similar state programs have had a limited success in protecting our remaining wetlands. It is not time to take the next step in incorporating wetlands protection into a resource management and planning approach. The question is not whether to have federal or state laws and regulations, it is how to use the strengths of both to the benefit of the other and of the wetlands which they serve and we depend. 

I. Weston Wheeler, AICP
J.D. Florida State University (expected April 2001)
This is an abridged version of the article that took second place in the 2000 Maloney Memorial Writing Contest

1.. LEWIS CARROL [CHARLES LUTWIDGE DOTSON], THROUGH THE LOOKING GLASS AND WHAT ALICE FOUND THERE, The Walrus and the Carpenter, Stanza 18, line 6 (Pennyroyal Press 1982) (1872).
2.. See U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985). (On a purely linguistic level, it may appear unreasonable to classify 'lands,' wet or otherwise, as 'waters'¼. [T]he Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one.").
3.. Id. at 1250 - 1251.
4.. See MARGARET N. STRAND, FEDERAL WETLANDS LAW 16-19 (Environmental Law Institute 1993, 1997), hereinafter STRAND. 
5.. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
6.. See STRAND, supra note 4.
7.. See id.
8.. See id.
9.. See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engr's, 2001 WL 15333 (U.S.).
10.. See id.
11.. See id. at *5.
12.. See id. at *8.
13.. See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engr's, 191 F.3d 845 (7th Cir. 1999), rev'd on other grounds, 2001 WL 15333 (U.S.).
14.. See U.S. v. Lopez, 514 U.S. 549 (1995).
15.. See Solid Waste Agency of Northern Cook County.
16.. See Hoffman Homes Inc. v. Administrator, 999 F.2d 256 (7th Cir. 1993).
17.. See id. at 260-261.
18.. See id. at 262.
19.. See Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995).
20.. See id. at 1395-1396.
21.. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).
22.. See id.
23.. See WILLIAM L. WANT, LAW OF WETLANDS REGULATION, '4.05[7] (West Publishing 1999) (citing "Guidance for Corps and EPA Field Offices Regarding Clean Water Act Section 404 Jurisdiction over Isolated Wetlands in Light of United States v. Wilson" (May 29, 1998)).
24.. See Rivers and Harbors Act of 1890, 33 U.S.C. § 403 (1994).
25.. See id.
26.. See National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (1994).
27.. See Clean Air Act, 42 U.S.C. §§ 7401 to 7671q (1994).
28.. See Clean Water Act, 33 U.S.C. §§ 1251-1376 (1994).
29.. See id. at § 1251(a).
30.. See id. at § 1342.
31.. See id. at § 1311.
32.. See STRAND, supra, note 6, at 7-8. See also Michael Hollins, Addition by Removal? National Mining Limits Section 404 Control of Construction in Wetlands, 14 J. LAND USE & ENVTL. L. 341, 345-347 (1999).
33.. See STRAND, supra, note 6, at 7-8.
34.. See id.
35.. See id.
36.. See id.
37.. See 33 U.S.C. §§ 1311(a) and 1362(12) (1994).
38.. See 33 U.S.C. § 1362(7) (1994).
39.. See STRAND, supra note 6, at 11.
40.. See id.
41.. See Natural Resources Defense Council v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
42.. See id.
43.. See STRAND, supra note 6, at 11-12.
44.. See id.
45.. See 33 C.F.R. § 328.3(a)(1) (199) and 40 C.F.R. §§ 230.3(s) and 232.2(q) (1999).
46.. See 33 C.F.R. §§ 328.3(a)(2) through (7) (1999).
47.. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
48.. See id. at 132.
49.. See id. at 129-132.
50.. See id. at 134.
51.. See United States v. Banks, 873 F. Supp. 650 (S.D. Fla. 1995).
52.. See id. at 658.
53.. See Hollins, supra, note 30.
54.. See FLA. CONST. art. II, section 7 (a).
55.. See FLA. STAT. section 373.012 - 373.71 (1999).
56.. See id. at section 373.019, Definitions (17). 
57.. See id. at section 373.019, Definitions (22). 
58.. See WANT, supra note 22, at 13-25.
59.. See STRAND, supra note 12.
60.. See e.g., Operating Agreement Concerning Regulation under Part IV, Chapter 373, F.S., and Aquaculture General Permits under Section 403.814, F.S., Between Southwest Florida Water Management District And Department of Environmental Protection (undated).
61.. See id.
62.. See A REPORT BY THE STAFF OF THE COMMITTEE ON WATER AND RESOURCE MANAGEMENT, FEBRUARY 1997, A REVIEW OF WETLANDS MITIGATION ISSUES, at 7, session-number not available (Fla. undated).
63.. Id. at 8.
64.. Id.
65.. See 33 U.S.C. § 1251(b) (1994).
66.. See 33 U.S.C. § 1362 (3) (1994).
67.. See 33 U.S.C. § 1344 (g)(2) (1994).
68.. See id. at (g)(1).
69.. See STRAND, supra note 6, at 69.
70.. See Friends of the Crystal River v. U.S. Envtl. Protection Agency, 35 F.3d 1073 (6th Cir. 1994).
71.. See id. at 1079-80.
72.. See id. at 1077-79.
73.. See 33 U.S.C. § 1344(h)(1)(A) (1994).
74.. See 33 U.S.C. § 1344(e)(1) (1994).
75.. See id.
76.. See Oliver A. Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 MD. L. REV. 1242, 1262 (1995).
77.. See U.S. Environmental Protection Agency, Study of State Assumption of the Section 404 Program 10 (1992).
78.. See id. at 1283.
79.. See id. at 1282.
80.. See STRAND, supra note 6, at 155.
81.. See State Programmatic General Permit State of Florida - (SPGP III-R1), (visited on April 7, 2000) <http://www.dep.state.fl.us/water/slerp/pds/spgpIII.pdf>.
82.. See id.
83.. See id.
84.. See id.
85.. See Coordination Agreement Between the U.S. Army Corps of Engineers (Jacksonville District) and the Florida Department of Environmental Protection State Programmatic General Permit, (visited on April 7, 2000) <http://www.dep.state.fl.us/water/slerp/pds/coordag.pdf>.
86.. See note 128, supra.
87.. See Houck, supra note 123 at 1285.
88.. See id.
89.. Id. at 1309.
90.. See id. at 1311.
91.. See Alyson C. Flournoy, Preserving Dynamic Systems: Wetlands, Ecology and Law, 7 DUKE ENVTL. L. & POL'Y F. 105) (1996).