Ramifications of the SWANCC Decision

Ramifications of the SWANCC Decision

(An excerpt from a document prepared by Terrestrial Environmental Specialists, Inc.)

What does this mean to a developer involved in current or future wetland permitting issues! For the time being, we have no choice but to take a wait and see posture. As the Corps reacts to new applications, as well as requests to withdraw or amend pending applications, some clarification will hopefully be forthcoming. The advice we provide our clients over the next few months will probably change as we see how the Corps responds.

We know, however, a few things will certainly change. First, and most obvious, is the question of whether a wetland is isolated, and thus a non-jurisdictional wetland. That question was rarely raised up until now. They were all jurisdictional wetlands. Now it becomes a major question; a question that not only affects how our clients can use their land, but it may have significant financial consequences when the cost of wetland mitigation is factored into a project.

In addressing the question of isolation, we will now be taking a more expansive look at the relationship between a wetland and its receiving surface water. The nature and extent of any hydrological connection to off-site, and perhaps distant, water bodies may have to be documented to address the adjacent and significant nexus issues. The reaction of the Corps to permit applications over the next few months will dictate how we all deal with wetlands issues.

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