quote:

Originally posted by Andrew Geffert:
I am still trying to find a definition of “Isolated” that is usable and legal when determining wetland jurisdiction. Slightly different issue than to the Nexus test.

Andrew,
I thought the Nexus test was supposed to determine if an area was isolated. Of course, the Nexus test itself seems so subjective ... Any 2 people can draw different conclusions from the same test it seems

In my experience, a wetland area that is found to be a wetland under the 1987 manual can be determined to be isolated if it is surounded by a non-hydric soil, with no hydrological connection (manmade ditch, natural stream OR (get this) a saddle in the landscape in upland areas). Good luck meeting these criteria (especially with the kicker of the topo lowpoint in uplands added in there. Said topographical lowpoint could (in high rainfall events) be used to transport a contaminant to Section 10 Waters. Now I understand how the Rocky Mountains are tied to China

I, like you, have been unable to document this in writing to supply to the client. When I have asked for said documentation, it has been referred to as "our policy".

Not saying that I agree with these "policies", it has just been my experience in the field. It does seem that the USACE does not want ANY isolated calls on the radar right now, since that draws in the EPA for final determination of isolated vs 404.

Patrick,
I do think an isolated wetland can certainly contain an OHWM and still be truely isolated.

Chip,
You are right about the OHWM. An upland pond with no surface connection to jurisdictional wetlands or waters of the US is isolated.

That rule of nots could be modified as follows:
Isolated wetlands are not w/in the OHWM of a water of the US, not abutting a jurisdictional wetland or water of the US, not adjacent to a jurisdictional wetland or water of the US, and don't contribute significantly to water quality of other jurisdictional wetlands or waters of the US.

Patrick,
Be careful, the issue of isolation is not that simple. If you look at the Corps' regulations at 33 CFR 328, the term adjacent is defined as bordering, contiguous, or neighboring. Wetlands separated from other waters of the US by man-made dikes or barriers, natural river berms, beach dunes and the like are adjacent. A pond you describe could easily be classified by the Corps as adjacent, and as such, its lack of connection is no longer relevant. If your pond in question is occupied by a federally listed threatned or endangered species there will be strong opposition to your position. Also if you are in a coastal state, your pond could support a population of American eels, and that species is considered an anadromous species, actually catadromous is a better description.

A wetland or pond that might appear to be physically isolated, could be regulated as an adjacent wetland or water.

Part of what you are talking about is were the last part of the statement takes over:
"and don't contribute significantly to water quality of other jurisdictional wetlands or waters of the US"

And also note that I stated, "Now the complicated part is just a matter of discussing details with the COE." Every region has its ideosyncracies and we can go on forever about certain issue relevant to certain regions. So... here is my revision, knowing full well that ultimately every comment about the simplification will lead finally back to discussions with a full reading of the regs and guidance documents and discussions with COE directly.

That rule of nots could be modified as follows:
Isolated wetlands are not w/in the OHWM of a water of the US, not abutting a jurisdictional wetland or water of the US, not adjacent to a jurisdictional wetland or water of the US, and don't contribute significantly to water quality of other jurisdictional wetlands or waters of the US, or affect regionally designated wetland species.

All things are complex, nothing is simple, but it is good exercise to try to simplify knowing full well that all things are complex and nothing is simple.

Regarding T&E species, that is a parallel but separate path that includes consultation with FWS and state or tribal agencies. It has no bearing on wetland or jurisdiction. It has to do with species habitat protection.

By the way, this topic thread is supposed to be about wetland delineation software. Anybody have any questions about that?

It would be nice if this topic could be cut apart and pasted into seperate topics by the moderators. While we have gotten off topic, it is the liveliest post in months!

That is one reason I posted the topic about tying flags - things seemed kinda quiet lately.

Regarding questioins about significant nexus and isolated wetlands, Patrick Murphy said;

"...The answer may be complicated, but getting the answer is simple. Ask your district engineer...."

Dear Patrick,
To obtain a correct legal understanding of "isolated wetlands" one must carefully study the U.S. Supreme Court's SWANCC and Rapanos decisions.

Currently, there is no reglatory definition of significant nexus so we are left with the Rapanos definition, which vaguely definies this term as flood or pollution control functions that have a significant, substantial, and not merely speculative or inconsequential impact on downstream traditional navigable waters and interstate commerce.

There have been various opinions and suggestions put forth by regulatory agencies for describing significant nexus, but most of these suggestions tend to be hypothetical, speculative, and difficult to support with facts and evidence.

Any definition of significant nexus that exceeds the narrow constraints of the Rapanos definition is not legally binding. The Corps must first promulgate regulations to define this term before significant nexus can become an enforcable legal criteria.

quote:

"...The answer may be complicated, but getting the answer is simple. Ask your district engineer...."

Hi Johnny OFF TOPIC,
You make it sound as if wetland permitting has, or should, come to a complete stop based on your previous comments. Well, the sky has not fallen, and permitting continues.

Rather than just running around saying the sky IS falling, do you have any suggestions? Let me just end it with that question. So Johnny, do you have any suggestions about how to simplify jurisdictional determination?

Let me suggest that if you can't figure out a simple answer then...
"...The answer may be complicated, but getting the answer is simple. Ask your district engineer...."

By the way, there is no crime in going off topic, but you seem to need a soap box or your own so you can write your treatis on the horrible state of affairs. May I suggest that you copy and paste all of your comments here to a new thread and title it something catchy like - "No jurisdictional determination is ever valid." Good luck with that.

Brother Ed Bonner said:

“...A wetland or pond that might appear to be physically isolated could be regulated as an adjacent wetland or water...”

Dear Ed,

Currently, there are both judicial and regulatory definitions of “adjacency.” The Rapanos decision provides the following judicial definition:

"...A wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection,...only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between the two, are “adjacent” to such waters and covered by the Act..."

The agencies have their regulatory definition which is far more expansive but does not have the legal authority of the Rapanos definition. In the revised Memorandum on CWA Guidance to Implement the U.S. Supreme Court Decision in Rapanos, dated Dec. 2, 2008, Footnote 29, the agencies inform us that the regulatory definition of “adjacent” is different than the U.S. Supreme Court’s plurality (Rapanos) definition:

"...29 While all wetlands that meet the agencies’ definitions are considered adjacent wetlands, only those adjacent wetlands that have a continuous surface connection because they directly abut the tributary (e.g., they are not separated by uplands, a berm, dike, or similar feature) are considered jurisdictional under the plurality (Rapanos) standard...."

Footnote 29 is included in the Rapanos Guidance Memorandum to inform the public that there is a valid judicial definition of adjacency which is more narrow than the regulatory definition. Therefore, the pond or wetland that might appear to be physically isolated, may or may not be regulated depending on which definition of adjacency is used to make the jurisdictional determination.

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

Johnny,
I think there is a disconnect with what is legal and what is practical in your posts. For most of my clients who own a couple acres and want to build a house (or even a small subdivision). It doesn’t mater if I think their wetland is non-jurisdictional; if I can’t convince the Corps that the wetland is not jurisdictional, it is not worth it to most people to fight the Corps. The legal fees, delays and uncertainty are far too much for most people to go through. It is generally far more cost effective for people/projects to do what the Corps demands, even if the corps is wrong.
This means that the little guys will get screwed until someone with enough resources and enough at stake fights the Corps and forces them to change policy to be within the law.

I think Andrew has hit on the the point that is the reality of most or alot of the situations we consultants find ourselves in. It seems to me that as a real estate developer, you would know this more than anyone Johnny. Sometimes it's just not worth the fight, unless you have deep pockets and are trying to impact alot of wetlands that may or may not be jurisdictional.

I'm trying to get my head around why you keep bringing up the "jurisdictional" issue anyway. A simple post about data forms becomes another one of your soap box sermons.

I found a post from you in Dec, 2006 where you said that:
"Though we seldom get credit for our efforts, land developers play a major role in protecting both wetlands and uplands. We choose our land purchases and plan our projects to avoid impacting high quality sensitive habitats. We design around wetlands, natural streams, and ponds to minimize and avoid impacts to the extent practicable. At the earliest stages of a project, we conduct environmental studies and begin the complex and lengthy regulatory process. We spend large sums to prepare delineations, permit applications, and mitigation."

That gave me a chuckle. You talk as if you do those things out of the goodness of your heart and love for the environment. Maybe you do, but every one else does because they have too. Also based on your posts about jurisdiction you seem to be like every other developer who wants to have as much land available to them as possible for development without having to go through the regulatory process. By your statement above, even if you had areas that were shown to not be jurisdictional you would not touch them.? I hope so, but I doubt it if it meant not making more money on a project.

I realize you feel like it is your obligation to educate or enlighten us about the current laws regarding wetland jurisdiction. It's obvious you feel that: "Many wetland delineators are well educated in environmental science, botany, soils, etc., but often lack the legal training that is necessary to comprehend the complexities of wetlands law and protect the rights of land owners." I tend to disagree especially in regard to the people who post on this forum. We may not be able to quote footnotes from the memorandums as you do, but we are well aware of the current state of wetland issues. Currently all we have at our disposal to determine jurisdiction is the 7 page JD form (which I've not heard anything about new forms). In my opinion these are, in the end, very subjective and as Patrick said the COE is the final authority as to what they consider jurisdictional or not. They are who we submit our information to for a verdict and not the courts. As long as they can support their decision then it just becomes an uphill battle trying to say otherwise.

As I said before none of this really pertains to my work since my state has 401 certification. But as a consultant though I see it as my job to protect my clients from making potentially expensive mistakes. If I worked in an area that jurisdiction was an issue and the COE rep said that all the wetlands were jurisdictional I would advise my client to go with that verdict. Unless I could without a shadow of a doubt prove that the wetlands aren't jurisdictional (which by the way would require a full delineation with data stations on all questionable wetlands) then what is the point.