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  1. Katherine Fontaine
  2. General Wetland Topics
  3. Tuesday, June 17 2014, 09:00 PM
I have a stupid question. Do stream and wetland mitigation areas automatically become waters of the U.S ?

I know they are supposed to be protected in perpetuity, but I have an unusual (or perhaps not so unusual?) case where they were not, and are now in different ownership. There is a small forested wetland remnant and a constructed stream channel on the property that were intended as mitigation for a (failed) former development. The constructed stream channel flows through the forested wetlands and into the development's storm sewer system, which ultimately flows to a constructed stormwater pond off site. Ordinarily, I would say the stream channel was nonjurisdictional (lacking direct connection or significant nexus with TNW), which would make the forested wetland remnant now isolated. But knowing they were intended for mitigation, I am not sure. Can the current owner proceed to develop the area if they wish with only a state level isolated wetland permit, or are both the stream and wetland waters of the U.S. because they were intended for mitigation? Can anyone shed any light on this?

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