Anyone else catch wind of the pending jurisdictional guidance that the USEPA and the USACE are drafting?

Rumor mill has it far enough along that it is ready for public comment. Also I have heard that it expected to be final by end of the calender year. It sounds as if it will return jurisdiction to pre-SWANCC days with the creative use of SN and ecological connections.

I've heard that there is something in the works. No details, though. Pre-SWANCC, eh? Not surprising. Far as I know, the activists are still in charge.

I honestly don't think it is going to matter one way or the other. The USACE districts I have dealt with (many) all seem to push the limits anyway. In the areas where USACE did not take jurisdiction, the USEPA stepped in a did. What I have always found odd is that Jurisdiction was asserted over the wetlands but a delineation of those wetlands never occurred. How on the USACE green earth can you assert a legal authority over something when you don't even know its limits? What perplexes me even more is when I attend conferences where the USACE or USEPA are presenting and some of their own HQ staff even insist you assert Jurisdiction be for you ever delineate the wetland.

Anyhow, if the the rumors are true and new guidance is in the works, I sure hope they ditch that massive form they ask you to fill out and finally go electronic. Makes no sense to me that we spend time and effort on drawing wetland lines in GIS and collecting data to just send in a binder full of paper.

Eric said:

"...What I have always found odd is that Jurisdiction was asserted over the wetlands but a delineation of those wetlands never occurred..."

Dear Eric,
It is not necessary to delineate wetlands in order to determine if they are jurisdictional. If wetlands are not jurisdictional then it is counter-productive and very risky for a land owner to delineate such wetlands. Likewise, if jurisdictional wetlands are carefully avoided then there is no reason to perform an expensive delineation and apply for a permit.

The EPA and Corps issued the revised Rapanos Guidance memorandum on Dec. 2, 2008 along with numerous other guidance documents and regulatory letters, all of which attempts to return pre-SWANCC jurisdiction by creative and expansive definitions of significant nexus, adjacency, and traditional navigable waters.

As we have repeatly noted, guidance documents are not official regulations and have no binding legal authority. This is why the Rapanos Guidance has not restored pre-SWANCC jurisdiction and why this goal can not be achieved by the agencies issuing another new guidance document.

Only new legislation along with a constitutional amendment which gives the federal government legal authority to regulate non-navigable, isolated, intrastate waters, could restore pre-SWANCC jurisdiction.

Johnny said:

quote:

It is not necessary to delineate wetlands in order to determine if they are jurisdictional

I agree, I am not speaking about the art or determining is the onsite features are subject to federal jurisdiction and then generally avoiding them. I am referring specifically to when you do apply for permit to impact those features and a delineation is not required or done, just a determination of jurisdiction, and a permit is issued (with or without mitigation). I am perplexed that one can come to a no net loss or a FONSI to issue a permit without knowing the extent of a wetland.

Now in my 20+ years of delineation/determination and permits, I have always done them in that order regardless of if we ever needed to go all the way to a permit or not. There has never been an issue with this or a challenge to the final call.

I think the issue will be when revised guidance is published, how it will address the significant nexus review. No need to change legislation if implementing existing court rulings allows the federal government to determine what significant nexus is and how to use it.

Guidance is not regulation and nether is a technical manual thus the 87 wetland manual and it supplements have no binding legal authority.

Thanks for the recap on when and who issued guidance. I must have missed that over the past few years.

Eric said:

"...Guidance is not regulation and nether is a technical manual thus the 87 wetland manual and it supplements have no binding legal authority..."


The 87 Manual has more legal precedent and authority than the Rapanos Guidance because it is a technical manual that has been used in numerous lawsuits over many years. It has well-established legal precedent that is based on a body of case law. It is my understanding that some regional supplements to the 87 Manual are currently being litigated in federal courts.

Unlike the 87 Manual, the Rapanos Guidance has a disclaimer in its footnotes which stipulates that it has no binding legal authority on the agencies or regulated public, so its weak and limited legal standing is clearly spelled out.