Has anyone encountered post SWANNC isolated wetlands being recaptured as jurisdictional based on a signifianct nexus finding? If so, what was the determining factor.

No, not personally, but I would imagine if it did occur it would be an isolated wetland that was "adjacent" to an RPW. In my mind the only way this could really be argued (by the COE) is if the wetland was seperated by a berm or levee from a higher order stream, just as an example. Maybe 10 to 15 feet separating the two. But again this brings up the question about what is adjacency. If they were separated by 100 feet would that still be considered adjacent?

Question for you. Has the original JD expired?

Thanks for posting and welcome to the forum.

Brandon,

This situation has not been encountered by myself, but since I work several projects a year I would like to hear some opinions for my own edification. I understand that man made berms and the such can justify a wetland as adjacent, but I am speaking of a wetland that shares no overland flow with a RPW or adjacent wetland and is not seperated by any sort of man made obstruction. Can a post SWANNC non-jurisdictional wetland be jurisdictionally recaptured post Rapanos. Any opinions or examples out there? P.S. Pretty new to the wetland permitting game and this seems like a great place to hash out some difficult situations. Thanks.

In the example I gave I did not mean to imply a manmade levee or berm, but a naturally occuring one. However, in my opinion the COE could claim JD over a truly isolated wetland as you describe them based on adjacency. And again the way adjacency is used in the Rapanos guidance is vague and subjective. So one persons definition of adjacent my differ greatly from anothers.

Eugene Nichols asked;

"...Has anyone encountered post SWANNC isolated wetlands being recaptured as jurisdictional based on a signifianct nexus finding?..."

Dear Eugene,
The answer depends on who you ask. If you ask the EPA, Corps, or one of the many wetlands practitioners who rely on these agencies for legal advice, then the answer is that wetlands which are isolated (non-jurisdictional) under SWANCC may definitely become jurisdictional based on a finding of "significant nexus."

However, if you ask an expert who is an advocate for the rights of land owners, then they might refer to Foot Note 32 of the Rapanos Guidance Memorandum dated Dec. 2, 2008:

Foot Note 32:
32 Id. at 2248. When applying the significant nexus standard to tributaries and wetlands, it is important to apply it within the limits of jurisdiction articulated in SWANCC. Justice Kennedy cites SWANCC with approval and asserts that the significant nexus standard, rather than being articulated for the first time in Rapanos, was established in SWANCC. 126 S. Ct. at 2246 (describing SWANCC as “interpreting the Act to require a significant nexus with navigable waters”). It is clear, therefore, that Justice Kennedy did not intend for the significant nexus standard to be applied in a manner that would result in assertion of jurisdiction over waters that he and the other justices determined were not jurisdictional in SWANCC. Nothing in this guidance should be interpreted as providing authority to assert jurisdiction over waters deemed non-jurisdictional by SWANCC.


Both experienced and beginner wetlands practitioners should always remember that there is no official and legally binding regulatory definition of "significant nexus." The various agency definitions of this term are merely preliminary recommendations, suggestions, conjecture, and speculations which may someday be codified into law when and if the agencies ever get around to promulgating new regulations to define this term.

It is very important for land owners to choose the right expert when dealing with issues such as isolated wetlands, SWANCC, Rapanos, and significant nexus, and I hope that Eugene Nichols becomes this right kind of expert.

This message has been edited. Last edited by: Johnny Stevens,

Thanks Johnny. I will have to begin reading my Corps regulatory guidance a bit closer. As for being the "right kind of expert" I will try my best.

Nice Johnny. You would think they would include that statment in the text and not as a footnote.

However, on page 8 of the memorandum they specifically say that jurisdiction will be asserted over (3) wetlands adjacent to, but not directly abutting, a relatively permanent tributary (e.g., separated from it by uplands, a berm, dike or similar feature). Of course the agencies have to document the ecological relationship between the tributary and adjacent wetland. However in some instances it seems to be fairly simple to argue that an adjacent isolated wetland could help in protecting the chemical, physical, and biological integrity of the downstream TNW.

So in my example under SWANNC the isolated wetland would not be jurisdictional, but under the Rappanos guidance the agencies could assert jurisdiction over it.

By your statement regarding significant nexus "The various agency definitions of this term are merely preliminary recommendations, suggestions, conjecture, and speculations " are you suggesting that consults ignore the Rapannos guidance? I think any consultant who did would be very foolish.

I think we are both right in our interpretations of the guidance (if you use it of course). The sad part is that it still leaves too much room on both sides to argue whether something is JD or not. Even worse I doubt anything will ever come about that will satisfy everyone.

Brandon asked:
"...are you suggesting that consults ignore the Rapannos guidance? I think any consultant who did would be very foolish..."

Dear Brandon,
A good wetlands consultant should thoroughly understand the Rapanos Guidance, including all of the footnotes and all of the documents in the appendices. One can not understand the Guidance without first understanding the actual Supreme Court decision. A good consultant should have an in-depth working knowledge of the Clean Water Act (and especially Section 404), all EPA and Corps regulations that implement Section 404, all Regulatory Guidance Letters and other guidance documents, the US Supreme Court's SWANCC and Rapanos decisions, and all relevant federal court decisions in the lower courts.

This message has been edited. Last edited by: Johnny Stevens,

Hi Eugene:

Yes, it has begun. Recently the EPA claimed jurisdiction over hundreds of acres of isolated wetlands on a large undeveloped tract in the Central Texas Gulf Coast region. I cannot discuss the details of this particular case, but did want to let you know that it has happened in Texas...

If you have a particular client that you are running into this same problem, go hunt yourself down a really good 404 CWA attorney to assist you. There are several throughout the country - I know of 2 really good ones in Texas and one in Arizona. Maybe Mr. Stevens would be willing to assist you in your legal endeavors, if you run that course...