It has been 3 years since the United States Supreme Court handed down the SWANCC decision (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers). The SWANCC decision held that certain isolated wetlands were beyond the jurisdiction of the Corps. Despite fears held by many that this decision would dramatically reduce federal regulation of wetlands, such has not proven to be the case in our region.

    TES has been involved in several projects where jurisdictional determinations considered the question of isolation. When the District Corps determines that a particular wetland is not isolated, the applicant can appeal to the Division level. But the appeal process does not enable the Division to override a determination issued by District staff. The appeal process results in a merit decision. In other words, does the applicant’s claim have merit? If not, the matter is concluded. If the appeal is determined to have merit, the case is remanded to the District level for reconsideration. We have yet to see a case where District staff changed their minds after being told to reconsider an isolation decision.

    To retain jurisdiction over as many wetlands as possible, the Corps has resorted to using historical information. The Corps not only considers if a wetland is presently connected to a navigable waterway, but whether or not it was ever so connected. A wetland may not be considered isolated if soil survey maps, topographic maps, or old aerial photographs indicate a past hydrological connection to a navigable waterway. There are many problems and questions with this approach. First, is it valid for the Corps to use historical information from prior to their 1975 jurisdiction? Second, the accuracy of historical maps cannot be validated. We often see errors in maps when they are compared to existing conditions. How do we know if the historic information is accurate? Lastly, the Corps uses historic information selectively; they use it to prove a connection but not to disprove a connection. The hypocrisy of this logic is obvious. Just try arguing that a wetland is not under the Corps’ jurisdiction because it was created by beavers and was historically an upland. History doesn’t count in that case, only when it serves to protect regulatory jurisdiction.

    Despite these hurdles, TES has managed to secure jurisdictional determinations designating wetlands as isolated. For example, a 150-acre project site in Central New York included three wetlands totaling about 25 acres. None of the wetlands were under state jurisdiction. TES concluded that one was connected to a tributary system of a navigable waterway, and the other two were isolated. Following a field review, the Corps agreed and determined that one wetland was a jurisdictional wetland and the other two wetlands, which encompassed approximately 21 acres, were isolated and non-jurisdictional. This decision provided the developer with greater planning flexibility than would have existed otherwise.

TES, Inc. 23 County Route 6, Suite A, Phoenix, NY 13135.  Tel: 315.695.7228  Fax: 315.695.3277

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