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.
9 June 2021 - EPA, Army Announce Intent to Revise Definition of Waters of the United States
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.
The agencies’ new regulatory effort will be guided by the following considerations: - Protecting water resources and our communities consistent with the Clean Water Act.
- The latest science and the effects of climate change on our waters.
- Emphasizing a rule with a practical implementation approach for state and Tribal partners.
- Reflecting the experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, Tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.
The agencies are committed to meaningful stakeholder engagement to ensure that a revised definition of waters of the United States considers essential clean water protections, as well as how the use of water supports key economic sectors. Further details of the agencies’ plans, including opportunity for public participation, will be conveyed in a forthcoming action. To learn more about the definition of waters of the United States, visit https://www.epa.gov/wotus.
30 July 2021 – EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States
The Environmental Protection Agency (EPA) and the Department of the Army (Army) have announced plans for upcoming community engagements to inform their efforts to revise the definition of “waters of the United States” (WOTUS). EPA and Army have stated a commitment to developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries.
EPA and Army are announcing a series of engagement opportunities, including an opportunity for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on the rulemaking.
The full announcement can be found here: https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states.
For more information on submitting written recommendations or to register for the public meetings, see www.epa.gov/wotus.
3 September 2021 – Current Implementation of Waters of the United States
The Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation. Additional information is available on EPA’s website at: https://www.epa.gov/wotus/current-implementation-waters-united-states.
2 November 2021 – Final 2020 National Wetland Plant List
The U.S. Army Corps of Engineers, as part of an interagency effort with the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture Natural Resources Conservation Service, is announcing the availability of the final 2020 National Wetland Plant List (NWPL). The Federal Register Notice for the 2020 NWPL update can be found here: https://www.federalregister.gov/documents/2021/11/02/2021-23891/national-wetland-plant-list The NWPL provides plant species wetland indicator status ratings, which are used in determining whether the hydrophytic vegetation factor is met when conducting wetland delineations under the Clean Water Act and wetland determinations under the Wetland Conservation Provisions of the Food Security Act. Other applications of the NWPL include wetland restoration, establishment, and enhancement projects. The list is effective as of 2 November 2021 and will be used in any wetland delineations performed after this date. Completed wetland delineation/determination forms should reference the version of the NWPL used to complete the form. The final NWPL is available at https://wetland-plants.sec.usace.army.mil/ (preferred browsers are Chrome and Firefox).
5 January 2022 – Navigable Waters Protection Rule Vacatur
The Environmental Protection Agency and U.S. Army Corps of Engineers (“the agencies”) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule (“NWPR”) nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.
On November 18, 2021, the agencies announced the signing of a proposed rule to revise the definition of “waters of the United States.” This proposal marks a key milestone in the regulatory process announced in June 2021. The agencies propose to put back into place the pre-2015 definition of “waters of the United States,” updated to reflect consideration of Supreme Court decisions. This familiar approach would support a stable implementation of “waters of the United States” while the agencies continue to consult with states, tribes, local governments, and a broad array of stakeholders in both the current implementation and future regulatory actions.
A durable definition of “waters of the United States” is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a review conducted by the agencies as directed by the January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”
Further details about the agencies’ plans, including information regarding the upcoming public meetings and proposed rule docket, can be found here.
An approved jurisdictional determination (“AJD”) is a document provided by the Corps stating the presence or absence of “waters of the United States” on a parcel or a written statement and map identifying the limits of “waters of the United States” on a parcel. See 33 C.F.R. § 331.2. Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 2005) (Regulatory Guidance Letter (RGL) 05–02).
As a general matter, the agencies’ actions are governed by the definition of “waters of the United States” that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. AJDs completed prior to the court’s decision and not associated with a permit action (also known as “stand-alone” AJDs under RGL 16-01) will not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. A NWPR AJD could also be reopened if the recipient of such an AJD requests a new AJD be provided pursuant to the pre-2015 regulatory regime. In that case, the Corps will honor such request recognizing that if the recipient of a NWPR AJD intends to discharge into waters identified as non-jurisdictional under the NWPR but which may be jurisdictional under the pre-2015 regulatory regime, such recipient may want to discuss their options with the Corps. AJD requests pending on, or received after, the Arizona court’s vacatur decision will be completed consistent with the pre-2015 regulatory regime.
As the agencies’ actions are governed by the regulatory definition at the time of the action, permit decisions made prior to the court’s decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. Permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. The Corps will not rely on an AJD issued under the NWPR (a “NWPR AJD”) in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the pre-2015 regulatory regime). Therefore, for any currently pending permit action that relies on a NWPR AJD, or for any future permit application received that intends to rely on a NWPR AJD for purposes of permit processing, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the pre-2015 regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on a preliminary JD or no JD whatsoever.