When is a Wetland Isolated?

It's been over a year since the United States Supreme Court handed down its decision in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"). The key component of the SWANCC decision removed "isolated" wetlands from Corps jurisdiction. As we discussed in last years' newsletter, there was, and remains, considerable confusion regarding when a wetland is isolated. The Corps provided little in the way of technical guidance on this issue and left the public to see how the matter evolved on a case-by-case basis.

TES worked on six projects in the past year in which the Corps agreed that some wetlands were isolated and thus outside its jurisdiction. Jurisdictional decisions on several other projects are pending. A summary, based on acreage, of these six projects is presented below. A natural forested wetland

Site Size	Total Wetland Area	Isolated
1,200	179.0	20.0
88	18.0	0.2
50	7.8	6.3
200	51.4	3.7
40	1.7	1.4
160	36.6	3.1

Fortunately, or unfortunately depending upon your perspective, all of these situations were fairly clear. The wetlands at issue were clearly isolated and the jurisdictional determination did not produce any precedent setting guidelines regarding some of the murky aspects of the SWANCC decision.

Why must all wetlands be delineated, even if they are unquestionably isolated? We continue to delineate all wetlands on a project site because such information is needed by the Corps to make a jurisdictional determination. Even in clear-cut cases of isolation, TES will flag the wetland boundaries, collect sample plot data, take photographs, have the wetland boundaries surveyed, and prepare a delineation report. Although a wetland might be obviously isolated, there is a risk in proceeding before the Corps renders a jurisdictional determination. Filling an isolated wetland without an official blessing from the Corps might be a reasonable decision if time is of the essence, but a delineation report should be prepared regardless. Without a delineation report it can be difficult to defend a unilateral decision that a wetland is not regulated after it is filled.

Following are a few additional facts to keep in mind when considering the question of isolation.

	The SWANCC decision has no effect on state jurisdiction.
	The Corps has still not provided any guidance regarding isolation.
	Many key issues have yet to be clarified as this case-by-case process evolves.

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