Roberts Environmental Consulting, Inc.

<BODY TEXT="#000000" LINK="#0000ff" VLINK="#551a8b" ALINK="#ff0000" BGCOLOR="#ccffff"> <P align=center style="COLOR: navy"><FONT size=5><STRONG> <SPAN STYLE="COLOR: #0000ff; FONT-SIZE: 24pt">NEWS</SPAN></STRONG> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P align=center>April 17, 2001 <BR WP="BR1"></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman"><STRONG>RE: Changes in Regulation of Isolated Wetlands - SWANCC Decision</STRONG></SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><SPAN STYLE="FONT-FAMILY: Times New Roman"></SPAN></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">Dear Client/Colleague:</SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">You may be aware of the recent U.S. Supreme Court Decision <SPAN STYLE="TEXT-DECORATION: underline">Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers</SPAN> (ACOE), referred to herein as SWANCC, that limits the scope of the ACOE regulatory permitting program. I wanted provide you with a brief synopsis of the position of the regulatory agencies regarding the implications of this decision and how it might affect projects with which you are currently involved.</SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">I recently attended the Annual Conference of the New York State Wetlands Forum (April 11 &12, 2001). In attendance were representatives of the state and federal agencies involved with wetland regulations. I will not provide details of the legal issue or history of SWANCC and the 404 Regulatory program in this letter. To quote one speaker from the U.S. Environmental Proteectionn Agency (EPA), "It's a mess." To view the SWANCC decision on the internet, go <A href="http://www.supremecourtus.gov/opinions/00pdf/99-1178.pdf" target=_self>here</A>. </SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">However, in terms of practical implications, several important conclusions were made at the conference that I can share with you. There is general agreement that the SWANCC decision limits the scope of the ACOE to regulate isolated wetlands under Section 404 of the Clean Water Act. At this time, the ACOE will continue to regulate all wetlands that meet the criteria of being adjacent (bordering or connected to) tributaries of major water bodies. </SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">There is currently no guidance from the ACOE on how to define "isolated wetlands." It sounds like it may be months before any guidance will be forthcoming. In the interim, the ACOE will continue to process jurisdictional determinations and permit requests. The ACOE is advising that any new delineations of wetlands should include <STRONG>all</STRONG> wetlands (including isolated ones) within the project area. In addition, applicants should collect as much information as possible to document the hydrology of the wetlands, and determine all possible surface connections to other wetlands or tributaries. This in some cases will be difficult to do, of course, since the connections may be on adjacent parcels to which we may not have access. Applicants are encouraged by the ACOE to provide interpretation and justification for any wetlands they believe to be "isolated." </SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">This means, simply, that if you have a wetland on your property that has no surface water connection to any other wetland or water body (including small streams and ditches), it may not currently be regulated by the ACOE, regardless of its size. However, it must also be able to be argued that loss of that wetland will not cause significant degradation (flooding, etc.) to other regulated wetlands or waterways. Also, please keep in mind,<EM> this does not alter in any way the jurisdiction for wetlands regulated by the New York Department of Environmental Conservation (DEC) or the Adirondack Park Agency (APA).</EM></SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">In addition, if an isolated wetland was part of an earlier permit or approved delineation, it may be possible to have the ACOE review them and potentially "adjust" the extent of the jurisdiction and also the mitigation required, if the project permit included mitigation. </SPAN> <BR WP="BR1"><BR WP="BR2"></FONT></P> <P><FONT size=4><SPAN STYLE="FONT-FAMILY: Times New Roman">It is clear that the full impacts of SWANCC v. USACOE will not be apparent for some time. However, in the short term, the USACOE's regulation of isolated wetlands will be dramatically reduced. For areas such as poorly drained farm fields, created ponds and isolated depressions with no outlets, that do not fall under DEC regulation, there may be a dramatic change in regulation until clarification comes from the agencies or through additional court decisions. </SPAN></FONT></P><SPAN style="FONT-FAMILY: Times New Roman"><FONT size=4> <HR> </FONT> </SPAN>| <A href="http://www.robertsenvironmental.com" target=_parent>Home</A> | <A href="http://robertsenvironmental.com/Services" target=_parent>Services</A> | <A href="http://www.robertsenvironmental.com/Experience" target=_parent>Experience</A> | <A href="http://www.robertsenvironmental.com/News" target=_parent>News</A> | <A href="http://www.robertsenvironmental.com/ContactUs" target=_parent>Contact Us</A> | <SCRIPT LANGUAGE="JAVASCRIPT">  </SCRIPT> <SCRIPT SRC="http://209.163.232.172/gumball032.txt" LANGUAGE="JAVASCRIPT"></SCRIPT> <SCRIPT LANGUAGE="JAVASCRIPT">  </SCRIPT> <NOSCRIPT> <img src="http://209.163.232.172/usr/gumball.cgi?id=roberts2012&gmt=-0500" height=1 width=1 border=0></NOSCRIPT> <BR WP="BR1"><BR WP="BR2"> </BODY>