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Significant
questions were raised in the Supreme Court’s SWANCC (2001) and
Rapanos (2006) decisions concerning the scope of federal
jurisdiction in wetlands and other waters. Interim guidance issued by
the Corps and EPA (June 2007) interpreting the decisions has made the
business of jurisdictional determinations (JD) much more complex.
Everyone is struggling with such concepts as "non-navigable, not
relatively permanent tributaries"; "similarly situated wetlands";
"ecological adjacency"; "more than speculative or insubstantial effect";
and "significant nexus." This course will help you understand and apply
these and other concepts that must be addressed in the rapidly changing
regulatory environment. The course will also provide technical
background for evaluating flow characteristics — duration, frequency,
volume, and distance — and the assessment of ecological functions as
they relate to a significant nexus determination. The course assumes a
thorough background in Corps regulatory policy. Through lectures, a
practical exercise completing a JD form, and a field trip, participants
will have an opportunity to learn and apply the latest Corps/EPA
guidance.
REASON FOR CANCELLATION
On
January 10, 2008, WTI decided to cancel all sessions of the course
entitled Advanced Geographical JDs Post Rapanos and SWANCC. We
have not made this decision lightly, since we try at all times to
conduct the sessions that we announce. However, after examining more
completed JD forms from Corps districts around the country than we care
to think about, we have yet to find one drainageway, no matter how
ephemeral or torturously connected to a traditional navigable water,
which the Corps has deemed outside its jurisdiction. While many Corps
districts are not regulating isolated wetlands and some are not
regulating some ditches (although other ditches are being regulated), we
cannot in good faith offer a course teaching a reasoned, technical
appraisal of “significant nexus” when the end result of the JD process
appears to be preordained. It is our opinion that the current guidance,
released in June 2007, is so vague that it can always be used to
determine that a waterbody with any connection whatsoever to a TNW –
even if the TNW is hundreds of miles away – is a water of the U.S. In
actual practice to date, that is exactly how it is being used.
Perhaps, after comments on the interim guidance are evaluated, a more
reasoned and technically based process will emerge. We will at that time
reassess the possibility of offering the advanced jurisdictional course.
Until that happens, however, we wish you good luck with your JDs. |
