Michael Brandman Associates Forerunner in Latest Regulations

Along with other consultants, public agencies, and regulators, MBA has been following the guidance resulting from the consolidated cases Rapanos v. United States and Carabell v. United Stated (referred to as Rapanos).  Unlike others, however, MBA had the unique opportunity to have one of its jurisdictional delineations be a case study for the process between the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) of determining significant nexus.  The Clean Water Act gave EPA the authority to implement pollution control programs and under section 404 of the Clean Water Act the USACE regulates the discharge of dredged or fill material into waters of the U.S.  As a result of Rapanos, the EPA and the USACE issued a joint memorandum with guidance as to implementation of the split supreme court opinions of Rapanos.  As part of this guidance, the USACE is required to send any jurisdictional determinations that require a significant nexus analysis to the EPA for review.  MBA conducted a delineation at the University of Irvine (UCI) that was used as a case study for this process.  The USACE used the delineation report prepared by MBA, which was completed before the Rapanos Guidance, and divided the 2,232 linear feet of on site waters into 8 relevant reaches.  The USACE determined that 4 of the 8 reaches were jurisdictional under section 404 of the Clean Water Act and that 4 reaches were not jurisdictional based on the Rapanos Guidance.  The EPA evaluated the USACE significant nexus memo and determined that all the reaches were jurisdictional.  MBA’s involvement in this communication between the USACE and EPA provided MBA with the opportunity to see the type of information the USACE and EPA each review when making a significant nexus determination.  Although interpretation and implementation of the Rapanos guidance is an evolving process, having insight into the USACE and EPA analysis allows MBA to be at the forefront on changes in implementation of the guidance. 

As part of MBA’s internal education program, Paul Mead, the Project Manager/ Regulatory Specialist who worked with the USACE on the UCI significant nexus determination, conducted a training for MBA personnel at the UCI site ensuring that all MBA biologists and regulatory analysts are equally informed on the USACE and EPA implementation of the Rapanos guidance.  Internal trainings like these ensure that MBA employees are at the forefront of their technical field.  MBA also offers these trainings as brown bags or workshops through its external training program.