By Environmental Law, Real Estate Strategies Group

Our questions have been answered! Effective June 4, 2007, the Corps of Engineers and the Environmental Protection Agency finally issued explaining how the agencies will interpret the formulas for wetlands jurisdiction set forth by the United States Supreme Court in the case of Rapanos v. United States. The guidance will apply to the evaluation of wetlands in both permitting and enforcement actions.

The guidance itself is quite complicated. On the Corps website (www.usace.army.mil) there is a prominently placed headline advertising the issuance of the guidance. A click on that link will bring up the guidance itself, as well as a link to additional information. The additional information consists of three categories-general information, the Corps jurisdictional form instructional guidebook, and other supporting documents-containing 13 separate documents. The volume of “explanatory documents” is an indication of the difficulty the agencies had in developing their interpretation of the court’s formula and also gives the regulatory community an inkling of the difficulty they will have in understanding its application to their properties.

Although the interpretation of the guidance documents will ultimately be determined as the guidance is implemented, the agencies have highlighted some standards at this time. First, they explain that they will continue to assert jurisdiction over all traditional navigable waters and wetlands next to them. The guidance goes on to describe two cases in which the agencies have jurisdiction over waters that are not traditionally navigable. The first is when the waters flow relatively permanently, which they define as year-round or seasonally (typically three months). The agencies will also take jurisdiction over waters that are not relatively permanent if there is a significant nexus between them and traditional navigable waters.

Although an attempt is made to provide some clarity to the evaluation of the significant nexus, the process retains the element of subjectivity that was observed in the pre-Rapanos evaluations of wetlands jurisdiction. One thing that is certain is that the amount of paperwork that is involved in conducting the evaluation has increased. The form that must be completed during a wetlands evaluation is now seven pages long and requires very specific information on water flow, trapping and filtering of pollutants and terrestrial and aquatic habitat. As mentioned above, the Corps has prepared a guidebook entirely devoted to the completion of this form.

The determination of jurisdictional wetlands now also requires coordination between the Corps and the EPA whenever the wetlands are deemed to be isolated or if the determination requires an evaluation of the significant nexus. Historically, the Corps made these determinations on its own. It will be interesting to observe how the agencies coordinate their efforts and what impact that will have on the issuance of jurisdictional determinations.

The agencies have issued this guidance as draft and have requested that the public provide comments upon it in the next six months as it is implemented to describe your experiences. A final guidance is expected after the draft has been in effect for nine months. The regulated community should take advantage of the opportunity to comment as the guidance is utilized as it can impact the content of the final publication and CBLAB Policy Committee members.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.