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Builders, Developers Seek to Avoid Delays in Determinations of Federal Jurisdiction

01/24/2011 BNA Daily Environmental Report

The BNA Daily Environment Report quoted Nossaman Partner Mary Lynn Coffee in the article "Builders, Developers Seek to Avoid Delays in Determinations of Federal Jurisdiction."  The piece discusses confusion surrounding Section 404 of the Clean Water Act, which prohibits the filling of wetlands without a U.S. Army Corps of Engineers permit if the area is determined to be under federal jurisdiction.

Ms. Coffee told the publication that "in isolated wetlands, where federal jurisdiction is not clear cut and a significant nexus test is indicated, federal guidance requires case reviews, which adds to the work required by developers and the corps."  She added that many of her clients, which include private developers and municipalities, "opt to avoid delays by not doing additional analyses to determine whether there is a significant nexus."

She went on to say that guidance issued by the Corps and Environmental Protection Agency "was not real guidance. Many of my clients do their analyses as if Rapanos never happened. We are not challenging [jurisdiction]. To do so is too long and involved a process." 

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