The Regulatory Branch's jurisdiction is subject to the River and Harbors Act and the Clean Water Act. Section 9 & 10 of the Rivers and Harbors Act of 1899 includes all navigable waters. This includes the territorial seas and those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or are presently used or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce.
Section 404 of the Clean Water Act regulates discharges of dredged/fill material into waters of the United States. "Waters of the United States" is broadly defined to include waters whose alteration could or does influence interstate and international commerce. These waters include navigable waters, interstate waters, intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds. This section 404 jurisdiction is defined as encompassing Section 10 waters plus their tributaries, adjacent wetlands and isolated waters. Final authority regarding Clean Water Act jurisdiction remains with the Environmental Protection Agency.
A Jurisdictional Determination (JD) is the procedure of identifying and locating jurisdictional waters of the United States regulated by the Corps of Engineers under Section 404 of the Clean Water Act and Section 10 of the Rivers & Harbors Act of 1899, and is commonly referred to as the “JD process”, a “wetland determination” or “delineation”. This process is essential when investigating, planning, designing, or submitting an application for a permit from the Corps to determine if the proposed activity will impact jurisdictional waters of the United States.
The Corps receives thousands of requests each year to perform JDs. Due to limited staff and resources, response time can be several months or longer. To expedite the JD process, we encourage applicants (commercial or private) to use a consultant to conduct wetland delineations whenever possible, especially for project areas greater than 5 acres. The consultant will delineate the extent of wetlands and other waters of the United States within the project area. The consultant should then submit the delineation report to the Corps for concurrence. Once a JD is completed for the project area, a determination of permit requirements can be made at that time.
To request a Jurisdictional Determination prior to submitting a permit application, please include a letter which addresses the information needed to complete an Approved Jurisdictional Determination. In most cases, a Preliminary Jurisdictional Determination is the most efficient type of JD for a given site. Preliminary JDs are non-binding and advisory in nature and cannot be appealed, while an Approved JD is appealable.
NEWS ANNOUNCEMENT- The Environmental Protection Agency and Department of the Army have announced their intent to revise the definition of “waters of the United States” (WOTUS), to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The EPA/Army press release can be accessed here: https://www.epa.gov/newsreleases/epa-army-announce-intent-revise-definition-wotus.