Wetland Wednesday
February 5, 2020
The publication of the 2020 Navigable Waters Protection Rule is still pending in the Federal Register. At least as of 8 PM on Tuesday February 4, 2020. The pre-publication version is a mere 320 pages. It has some high points and some low points. However, believe it or not the Final NWPR is an expansion of jurisdiction as compared with the 2019 draft version.
The first major point is that the federal government recognizes that professional field work is necessary to make a wetlands or tributary assessments. Phew, we still have jobs! The draft version discussed the simplification of the assessment process to the point of ridiculousness. It was stated that anyone could stand in the back of their pickup and look out across the landscape and know what is jurisdictional and what is not. This might be a good way to hunt deer (we do this in the south) but it is hardly a way to delineate a wetland. So, they still need us. Yeah!
Ditches have also had a rework. In the draft version they needed to be tidal or navigable to be jurisdictional. In the new version, a ditch can become a tributary if it passes though a wetland. In the new rule man-made tributaries can be jurisdictional and this is an expansion. It may even go beyond the current (pre-2015 rules) definition of a ditch.
The concept of adjacent wetlands now includes wetlands that are separated by a berm or levee. This is an expansion of what we had known as abutting wetlands only being jurisdictional in the draft rule. The adjacent waterway needs to “touch” the wetland at some point in the year, but it does not need to be continuous.
Ephemeral streams have become much more complex. There are conditions that allow for jurisdiction. It is a bit too much in the weeds to cover in a short post, but they can be jurisdictional. More to follow on this topic.
One final thought on this is rule is the new tributary assessment field work. This is new work for us and expands the role of the wetland delineator. Now you are also a tributary assessor. We’ve got to come up with a better name, but it is a new job title. It is complicated enough that you should be able to add some billable time to your workday.