Rapanos Update
(What this Supreme Court Ruling Means to Your Development)
By Thomas J. McGill, Ph.D.
Will your project require wetlands permits? If so, you may already have heard about Rapanos vs. United States but do you know exactly what it means to your ability to complete your project on time? This Supreme Court decision was created to narrow federal jurisdiction by clarifying what authority the federal government has regarding waters and wetlands of the US.
The Army Corps of Engineers (Corps) declared how they plan to interpret the Rapanos ruling in a joint guidance document they issued a short time ago. Basically, the Corps will continue to maintain jurisdiction over traditional navigable waters of the United States and wetlands adjacent to those waters. The Corps also identified some situations in which Federal Jurisdiction will not be asserted unless a "significant-nexus" to downstream navigable waters can be established. These situations can be grouped into three categories: (1) Non-navigable tributaries that are "not-relatively permanent", including ephemeral drainages and those intermittent streams that lack continuous flow (less than three months of the year); (2) Wetlands adjacent to tributaries that are "not relatively permanent"; and (3) Wetlands that are adjacent to, but "do not directly abut a relatively permanent" non-navigable waterway.
What does this all really mean?
- Features that were traditionally considered jurisdictional are still jurisdictional.
- Features that have water in them at least three months of the year and connect to a jurisdictional feature are also considered jurisdictional.
- Other features won't be jurisdictional unless a "significant nexus" can be established to traditional jurisdictional waters.
Okay, so what is a Significant Nexus?
Significant nexus looks at the following parameters of a feature to determine if a water is jurisdictional. If they are present, a significant nexus exists.
- Average rainfall, flow characteristics and watershed size;
- Distance of the tributary to the traditionally navigable water;
- Channel slope and dimensions; and
- Capacity or potential of a channel to carry pollutants, nutrients, organic carbon, and sediment.
Does the Significant Nexus Rule reduce or increase the Corps jurisdiction?
While it is not yet known how broad the Corp's discretion is in ruling on significant nexus determinations, it appears that most ephemeral drainages will remain jurisdictional. However, "swales or erosional features" (such as gullies or small washes) or roadside ditches that lack permanent flow will no longer be jurisdictional.
Significant Nexus Form
Before submitting jurisdictional delineations, a 7-page "Jurisdictional Determination Form" developed by the Corps must be filled out to document that a feature is/is not jurisdictional. The EPA then will oversee the Corps Jurisdictional Determinations with the intent of providing consistency.
Until the Corps finalizes and releases some of its reviews, it is difficult to know with certainty if the Rapanos decision has served to effectively narrow federal jurisdiction - its original intent. I will be keeping an eye on it and suggest you do, as well. If you have questions regarding Rapanos or would like a specific topic addressed in a future column, please feel free to contact me at tmcgill@brandman.com.
March 2008 Issue