Sustainable Land Development Today - February 2008 - (Page 12) EROSION CONTROL erty. Sometimes, due to the reconfiguration of water basins on site during grading, this low point may be a depression on the property line that did not previously contain any significant water flow. Not surprisingly, the resulting creation of a stream across the neighboring property almost always leads to litigation. Yet, the most common mistakes are the ones that should be obvious: failing to obtain a permit, failing to design, implement, or maintain BMPs, and failing to avoid filling a jurisdictional stream. Of course, the easiest way to insure a lawsuit is to ignore or belittle the problems on an adjoining property. EPA and Corps of Engineers’ Joint Guidance on Rapanos: An In-field Perspective By Holly P. Cole, Esq. Nearly one year after the Supreme Court’s fractured opinion in Rapanos v. U.S., on June 5, 2007, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers jointly issued a memorandum interpreting Rapanos in order to provide guidance to their field offices to ensure consistent regulation of jurisdictional waters under the Clean Water Act (CWA). As a result of the court’s split decision, the EPA and the Corps will now assert jurisdiction over waters under CWA Section 404, which satisfy either Justice Antonin Scalia’s definition of “waters of the U.S.” (including only traditional navigable waters, tributaries which are relatively permanent and wetlands adjacent to those waters) or Justice Anthony Kennedy’s “significant nexus” test. See www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf for full text of the Guidance, a memorandum that provides guidance to EPA regions and Corps districts implementing the Supreme Court’s decision in the consolidated cases Rapanos v. U.S. and Carabel v. U.S. which addressed jurisdiction over waters of the U.S under the Clean Water Act. Practically speaking, the Guidance leaves much to be desired for the consultants tasked with conducting jurisdictional delineations in the field. For instance, the EPA and the Corps have significantly different interpretations of the Guidance and limited training has been provided regarding its implementation. Additionally, agency technical personnel readily admit that very few of them understand the Guidance. It appears that the Guidance has yet to realize its purpose to provide consistency and reliability in jurisdictional determinations. Non-jurisdictional determinations are now subject to a more stringent and rigorous review by the Corps and the EPA. However, the agencies lack the personnel to review and process the nonjurisdictional determinations and the waiting time for such approvals is as much as eight months in some areas. As a result, it is faster and more economical to delineate waters as jurisdictional, obtain permits and conduct mitigation rather than await a nonjurisdictional determination. In addition, the required documentation form was not subjected to scientific field trials as in the past. Moreover, the data sheets are confusing to field personnel and attempt to corral “waters” into narrowly defined and scientifically inappropriate classifications such as permanent waters, relatively permanent waters (RPW) and relatively non-permanent waters (RNPW), as opposed to perennial, intermittent, or ephemeral waters. In the Spring of 2008, the agencies will either reissue, revise or suspend the Guidance based on feedback provided during the public comment period. It will be interesting to see whether the Guidance proved effective or whether it will lead to the provision of new regulations or legislation. In any event, the Guidance does little to ease the delineation and permitting process for the time being and is sure to result in further litigation in this area. Holly P. Cole, Esq. is an associate in the environmental practice group of Atlanta-based Schulten Ward & Turner, LLP. Practical Advice for Avoiding Erosion Pitfalls Much like a healthy diet, good erosion control is a discipline and not something that one can implement without some effort. • Location, location, location - Prudent site selection is often the first step to controlling pollution. Sites with challenging topography or sensitive ecological features will require significantly more work to avoid pollution impacts that must be recognized and accepted from the beginning. Of course, there are also some sites that simply should not be developed. • Fit the activity to the site, not vice versa - The square peg does not fit the round hole. All too often serious problems are created by trying to over-engineer a site to meet a desired purpose. The fact that it may be possible to engineer a solution to address site deficiencies does not mean that it should be done. Detailed and 12 February 2008 Sustainable Land Development Today http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf
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