The U.S. Army Corps of Engineers (Corps) recently issued Regulatory Guidance Letter (RGL) 16-01 that clarifies for the Corps’ field staff and the regulated public when it may be appropriate to issue an approved jurisdictional determination (AJD), as opposed to a preliminary jurisdictional determination (PJD), or not make any determination at all regarding whether a particular tract of land contains federal “Waters of the United States” (WOTUS). A decision that WOTUS are present on particular site makes the property subject to federal control and permitting programs under Section 404 of the Clean Water Act (CWA), the Rivers and Harbors Act or possibly both.
All indications are that RGL 16-01 was issued in response to the U.S. Supreme Court’s unanimous decision earlier this year in U.S. Army Corps of Engineers v. Hawkes Co., in which the Supreme Court held that AJDs are “final agency actions” subject to review by a judge in court, under the Administrative Procedure Act. This gives construction project proponents legal recourse when there is a disagreement over the precise scope of WOTUS boundaries under the CWA. Prior to the Hawkes decision, AJDs were appealable only through the Corps’ internal administrative appeals process.
AGC submitted a joint “friend of the court” brief in the Hawkes case making a strong case for why it is vital for contractors to know with certainty whether their projects contain WOTUS. A “jurisdictional determination” significantly impacts how land may be used, dramatically raises costs, and often reduces the feasibility of constructing critical infrastructure.
The Corps’ RGL 16-01 accepts the Hawkes decision and reaffirms the Agency’s commitment to continue to provide JDs when asked, consistent with the latest guidance. The guidance letter “does not change or modify the definitions of AJDs and PJDs included in Corps regulations… documentation practices… require[ments]...” but rather is to “encourage discussions” on the different means of addressing questions of federal jurisdiction “to ensure all parties have a common understanding of the different options… and what type of documentation will best meet their needs.” For example, AJDs are official determinations that jurisdictional waters (WOTUS) exist (or not) on one’s property, while PJDs are “preliminary” and not legally binding.
The DE continues to have the discretion whether or not to issue a JD, per the Corps’ regulations. The guidance suggests that it may be reasonable for a District Engineer (DE) to give “higher priority to a JD request when it accompanies a permit request.” Finally, the guidance provides the forms that property owners/operators should use to ask the Corps to conduct a JD.
The Corps will continue to coordinate with EPA per applicable memoranda. It will also continue to post final AJDs on its website – click here.
RGL 16-01 is the first RGL issued during the Obama Administration and the first RGL since 2008. The RGL supersedes two prior RGLs on JDs issued during the George W. Bush Administration, RGL 07-01 and RGL 08-02.
For more information on the Corps’ regulatory programs and permits, click here. Or please contact AGC’s Leah Pilconis at pilconisl@agc.org.