NMBA Blog
Friday, June 8, 2007
Rapanos v. United States and Carabell v. United States
The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency issued regulatory guidance yesterday regarding the Rapanos v. United States and Carabell v. United States that will affect how the Corps claims wetlands and other waters.
A copy of the guidance is attached. Ultimately, this is how we believe it will affect wetland determinations:
Swales or other erosional features, such as wash-outs, that do not have a permanent or significant duration of flow/innundation will NOT be considered juridictional and therefore will not need a permit from the Corps.
Ditches that were excavated wholly in and draining only uplands that do not carry a relatively permanent flow will NOT be considered jurisdictional and therefore not need a permit from the Corps. Note the caveat that the ditches be excavated wholly in uplands--a ditch that cuts through a wetland or drains a wetland may still be claimed as jurisdictional.
Non-navigable tributaries that are not relatively permanent and wetlands adjacent to non-navigable tributaries must have a "significant nexus" in order to be claimed as jurisdictional. This will be determined on a case-by-case basis. To determine if a significant nexus is present, an analysis of topography between the wetland and tributary, size of the watershed, amount of rainfall, and ecological factors must be considered. For example, if a wetland was present adjacent to a non-navigable drainage ditch, the topography between the ditch and the wetland should be analyzed to determine if the wetland could overflow to the ditch at some time or could contribute to water quality improvements to a navigable water. If it is determined that a seasonal connection would not occur, then the wetland would not be considered jurisdictional to the Corps.
A copy of the guidance is attached. Ultimately, this is how we believe it will affect wetland determinations:
Swales or other erosional features, such as wash-outs, that do not have a permanent or significant duration of flow/innundation will NOT be considered juridictional and therefore will not need a permit from the Corps.
Ditches that were excavated wholly in and draining only uplands that do not carry a relatively permanent flow will NOT be considered jurisdictional and therefore not need a permit from the Corps. Note the caveat that the ditches be excavated wholly in uplands--a ditch that cuts through a wetland or drains a wetland may still be claimed as jurisdictional.
Non-navigable tributaries that are not relatively permanent and wetlands adjacent to non-navigable tributaries must have a "significant nexus" in order to be claimed as jurisdictional. This will be determined on a case-by-case basis. To determine if a significant nexus is present, an analysis of topography between the wetland and tributary, size of the watershed, amount of rainfall, and ecological factors must be considered. For example, if a wetland was present adjacent to a non-navigable drainage ditch, the topography between the ditch and the wetland should be analyzed to determine if the wetland could overflow to the ditch at some time or could contribute to water quality improvements to a navigable water. If it is determined that a seasonal connection would not occur, then the wetland would not be considered jurisdictional to the Corps.
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