NMBA Blog

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.

Kudos to George Kelly for the terrific job he did testifying before the Joint hearing of the Subcommittee on Energy and Mineral Resources and Subcommittee on National Parks, Forests and Public Lands of the Committee on Natural Resources. Here is a very brief summary of the hearing. The hearing began with opening statements from Nick Rahall (D. W.V.), full committee Chair, as well as Jim Costa (D. Cal) and Raul Grijalva (D. Az), subcommittee chairs, and ranking minority member Steven Pearce (R. N.M.). The concern expressed by all was that the US has ample coal and relies on coal for 50% of its power generation. They said that the hearing was to gather information on meeting the "challenge" of climate change while still utilizing this domestic source of energy. The majority members accepted that there needed to be some solutions for carbon emissions from coal; the minority members expressed some concerns that the US should not rush into costly solutions to a problem that has not really been proven. There were two panels of witnesses. The first panel had speakers from USGS and DOE. They were describing the research and assessment/pilot programs on sequestration of carbon in underground systems, such as saline aquifers, coal seams or as an aid to oil recovery. This first panel addressed research needs to improve technology, etc. and did not talk at all about forests or carbon capture by trees and living resources.
The second panel had six witnesses, including George. Three of the witnesses addressed similar geologic sequestration issues, including using CO2 to enhance oil recovery and sequester the carbon, or other geological issues. Three witnesses talked about forests and use of living resources to sequester carbon. George Kelly was the only witness approaching these issues in terms of how to enhance markets in natural resource credits. George did a terrific job, in a very limited time (5 minutes), of explaining mitigation banking and the conditions needed to foster a market in carbon credits. He took the principles that work for mitigation banking and explained that a system for efficient forestry carbon credits would need to have similar attributes. Afterwards, a number of folks were talking with George about these concepts. It was very, very exciting.
After the hearing, we spent some time in Wayne Gilchrest's (R.Md) office. Gilchrest is one of 7-8 folks who has a bill pending on climate change. He is also a long time member of the Water Resources Subcommittee of House Transportation and Infrastructure, which is the subcommittee with Clean Water Act and WRDA jurisdiction. Congressional hearings require a great deal of preparation, a significant amount of time waiting, and then a short opportunity to make key points. George Kelly gave freely of his time to assist the Association and the industry. He deserves our congratulations and appreciation.