New Corps-EPA Guidance on Wetlands Jurisdiction

October 2, 2007

Most developers and real estate investors are well aware of the complications that can arise from the presence of wetlands, as well as the widely-publicized court decisions that have narrowed the types of wetlands subject to federal regulation in recent years.  The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have now issued joint guidance on how those agencies will implement the Supreme Court's latest wetlands decision in the Rapanos case.  We believe that clarifications arising from this guidance may be helpful to developers in evaluating potential wetlands issues for new projects or in reevaluating prior determinations on the wetlands status.  The joint guidance is summarized below:

The agencies will continue to assert jurisdiction over:

• Traditional navigable waters
• Wetlands adjacent to traditional navigable waters, including wetlands that do not have a continuous surface connection to traditional waters
• Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow, at least seasonally (e.g., typically three months)
• Wetlands that directly abut such tributaries (e.g., not those separated by uplands, a berm, dike or similar feature)

The agencies now generally will not assert jurisdiction over the following features:

• Swales or 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 carry a relatively permanent flow of water

The agencies will decide jurisdiction over the following based on a case-by-case, fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:

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

The agencies will apply the Rapanos "significant nexus" standard on a case-by-case basis, as follows:

• A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters
• Significant nexus includes consideration of hydrologic and ecologic factors