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WETLANDS ISSUE ALERT

Corps/EPA Issue Joint Post-Rapanos Guidance


On June 5, 2007, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued their long-awaited guidance regarding the scope of Clean Water Act (CWA) jurisdiction following the Supreme Court's decision in the Rapanos and Carabell cases. The Guidance consists of numerous documents – the guidance itself, a memorandum that outlines how the Corps and EPA will cooperate to implement the guidance, a Q & A, an Approved JD Form, and an Instructional Guidebook on how to fill out the JD Form. While the guidance document provides a general outline of what may be considered jurisdictional, it is the Instructional Guidebook that will likely provide the greatest level of detail and insight into the overall on-the-ground implications. All of the documents can be accessed on the Corps’ web page at

 

http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm.

 

During the first six months implementing the guidance, the agencies will invite public comments on case studies and experiences applying the guidance. The agencies, within nine months from the date of issuance, will reissue, revise, or suspend the guidance after carefully considering the public comments received and field experience with implementing the guidance.

The guidance, which is effective immediately, basically outlines three scenarios into which any given area may fall, as follows:

 

 

Always “IN”

· Traditional navigable waters.


· Wetlands adjacent to traditional navigable waters.
 

· Non-navigable tributaries to traditional navigable waters that have relatively permanent flow at least seasonally (e.g., typically three months).
 

· Wetlands that directly abut such tributaries.

 

 

Generally “OUT”

· Swales and erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow).

 

· Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not have a relatively permanent flow of water.
 

· Waters, including wetlands, deemed non-jurisdictional by SWANCC.

 

 

Possibly “IN” Based On The Significant Nexus Test

· Non-navigable tributaries that are not relatively permanent (e.g., ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally).
 

· Wetlands adjacent to non-navigable tributaries are not relatively permanent.
 

· Wetlands adjacent to, but that do not directly abut, non-navigable tributaries that are relatively permanent (e.g., separated from it by uplands, a berm, dike, or similar feature).

 

 

The Significant Nexus Test

· The water feature in question must have a demonstrated and documented significant nexus to a traditional navigable water.
 

· A nexus is considered significant if the flow characteristics and functions of the tributary and/or wetland significantly affect the chemical, physical or biological integrity of the downstream traditional navigable water.
 

· In assessing the relationship between ecological characteristics of tributaries and their adjacent wetlands with the downstream navigable waters, the agencies will include all “similarly situated” wetlands adjacent to the same tributary (e.g., when it is determined that a tributary and its adjacent wetlands collectively have a significant nexus with traditional navigable waters, the tributary and all of its adjacent wetlands will be considered jurisdictional).
 

· Principal considerations used to evaluate significant nexus include:

· Hydrologic Factors (e.g., the volume, duration, and frequency of the flow, the proximity of the tributary to a traditional navigable water, the size of the watershed, average annual rainfall, etc.), and
 

· Ecological Factors (e.g., the potential to carry pollutants and flood waters to the traditional navigable water, provision of aquatic habitats, potential of wetlands to trap and filter pollutants, and the maintenance of water quality within the traditional navigable water).

 

· To determine whether a subject water meets the significant nexus test, one must complete an 8-page JD form. The form basically requires various documentation, analyses and explanations as to why the agency asserts or declines CWA jurisdiction.

 

 

In the end, for certain areas, the guidance will help to clarify what areas can and cannot be deemed jurisdictional. At the same time, it will subject other wet spots to what could be a lengthy and onerous process to determine whether the federal agencies can regulate them, not to mention the lengthy permitting process that will follow. While the guidance suggest deadlines and timelines intended to ensure the process is efficient, time will tell whether suggested timelines alone are sufficient to meet this result.

 

NAHB Contacts:

 

Susan Asmus (202) 266-8538

 

Tom Ward (202) 266-8230

   
 

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   Updated:

18 Nov 2013

 

 

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