Federal Jurisdiction Over Wetlands Will Remain in Flux

January 8, 2010
Client Alert Newsletter Forecast 2010

In this upcoming year, the courts, the U.S. Army Corps of Engineers (the "Corps") and the U.S. Environmental Protection Agency will continue to define the extent of permitting jurisdiction allowed by Section 404 of the Clean Water Act. The most recent example of this process is the issuance of Special Public Notice #10-08 by the Baltimore District of the Corps, which announced on February 1, 2010, a one year trial implementation period for a Regional Supplement to the Corps' 1987 Delineation Manual. This Regional Supplement must be used for jurisdictional determinations in the northcentral and northeast regions of the United States. In its public notice, the Corps also requested that any delineator who believes that the Regional Supplement resulted in a significantly different boundary line than one produced under the 1987 Delineation Manual could submit both delineations to the Corps for review. At the end of the one year trial period, the Corps will assess the effectiveness of the Regional Supplement and determine whether any changes are necessary.