When Is an Intermittent Stream Non-Jurisdictional?

Can an intermittent stream be determined to be non-jurisdictional because a larger portion of that same channel is ephemeral?

The short answer is: yes, we are seeing examples of this.

But there is an important distinction in how the Corps appears to be making that determination.

I have not found a nationwide Corps rule that says, "If more than 50 percent of a stream is ephemeral, the entire stream is automatically non-jurisdictional."

Instead, what appears to be happening goes back to the Rapanos relatively permanent waters, or RPW, analysis.

Under the EPA and Corps *Rapanos* guidance, the Corps can evaluate the relevant tributary reach as a whole, rather than looking at one short intermittent section in isolation.