Jurisdictional (JD) vs. Non-Jurisdictional (NJD) Wetlands: A Review of Wetland Jurisdictional Determinations in Charleston and Horry Counties, SC
Boehm, Nicholas Hayes
Tufford, Daniel L
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Since the passage of the Clean Water Act in 1972 most wetland types have had some form of protection. However, following the Supreme Court Decisions, Solid Waste Agency of Northern Cook County v. United States Corps of Engineers (SWANCC) (531 U.S. 159,2001) and Rapanos v. United States (126 S. Ct. 2208, 2006) many aspects of wetland protection changed specifically for "geographically isolated" wetlands. "Geographically isolated" wetlands are known to provide many important ecological benefits which affect the environmental health of US waterways; however many have been and are being destroyed in South Carolina and elsewhere due to a lack of surface connection, or "significant nexus" to nearby jurisdictional water. The US Army Corps of Engineers (USACE) is the permitting agency in charge of making wetland jurisdictional determinations with the final authority ultimately falling under the US Environmental Protection Agency (EPA). For this project office and field assessments were performed on 27 files in Charleston County and 31 files in Horry County from 2006-2011. Each file contained wetlands the USACE determined to be "geographically isolated" and therefore non-jurisdictional (NJD). It was the goal of the project to determine what consistencies or inconsistencies were present in the NJD determinations; if those decisions were having a significant impact on the environmental health of South Carolina waterways; and if the proposed 2011 Guidance would affect these decisions in the future with respect to "geographically isolated" wetlands. The results revealed that each office used information provided by the consultant, soil surveys, topographic maps, and aerial photographs consistently, although that information was not always accurate. Several field assessments revealed important information not mentioned in the USACE files, which could have impacted the NJD determination. The 2008 guidance has created a gap, which allows many "geographically isolated" wetlands to remain unprotected. The 2011 Draft Guidance (http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf) allows that the Clean Water Act may protect "geographically isolated" wetlands, but only in very limited circumstances.