Regulatory Framework & Compliance Flashcards

What is the legal significance of the U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers (2001)?

Answer: It limited Corps jurisdiction by rejecting the 'Migratory Bird Rule' as a basis for CWA coverage

In SWANCC, the Supreme Court held that the Corps could not use the Migratory Bird Rule alone to assert jurisdiction over isolated, intrastate, non-navigable waters.

Following the Supreme Court's decision in Rapanos v. United States (2006), the 'significant nexus' test for CWA jurisdiction was articulated by which Justice?

Answer: Justice Kennedy in his concurring opinion

Justice Kennedy's concurring opinion in Rapanos articulated the 'significant nexus' test, which many courts and agencies used to determine CWA jurisdiction over wetlands and tributaries.

Under the 2023 Sackett v. EPA Supreme Court decision, which standard now governs whether wetlands are jurisdictional 'waters of the United States'?

Answer: A continuous surface connection test requiring wetlands to be directly abutting an WOTUS

In Sackett v. EPA (2023), the Supreme Court held that wetlands must have a continuous surface connection to a jurisdictional water body to be regulated as waters of the United States.

Which of the following activities is generally exempt from Section 404 permit requirements under the agricultural exemptions in Section 404(f)(1)?

Answer: Normal farming activities such as plowing, seeding, and minor drainage maintenance

Section 404(f)(1) exempts normal farming activities—including plowing, seeding, cultivating, and minor drainage maintenance of established farm areas—from Section 404 permit requirements.

The 'recapture' provision under Section 404(f)(2) can eliminate an agricultural exemption if the activity:

Answer: Is part of a plan or scheme to bring an area into use as a regulated activity

The recapture provision eliminates the Section 404(f) exemption when the activity is part of an overall plan or scheme designed to convert the area to a regulated use such as commercial development.

In the context of Section 404 compliance, what is a 'jurisdictional determination' (JD)?

Answer: A Corps written determination of whether a water or wetland feature is subject to CWA jurisdiction

A jurisdictional determination is a written Corps determination of whether aquatic features on a site are 'waters of the United States' and thus subject to Section 404 regulation.

An 'approved jurisdictional determination' (AJD) issued by the Corps of Engineers is legally binding for how long?

Answer: 5 years

An approved jurisdictional determination is binding on the Corps and EPA for 5 years, providing regulatory certainty to landowners and project proponents.