Industry coalition provides flowchart depicting the process
In September, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers released two joint coordination memorandums on jurisdictional determinations 1) under the 2023 waters of the United States (WOTUS) rule (as amended in September) and 2) under the “pre-2015 regulatory regime” that is in effect in the 27 states where the Biden Administration’s rule is on hold. (See previous AGC article for key background information.) The memos outline similar processes for coordination, wherein EPA plays an active role. Neither memo provides insight on how the agencies will determine jurisdiction nor how they will implement the relatively permanent test.
All draft approved JDs assessing wetlands under paragraph (a)(7) and other waters under paragraph (a)(3) of the 1986 regulations shall be coordinated at the local level in accordance with the procedures in this memorandum.
The memos outline the coordination process required for all draft approved jurisdictional determinations assessing certain wetlands and waters dependent on the applicable rule (pre-2015 regime or the 2023 rule). Click here for a flowchart from the Waters Advocacy Coalition that depicts the process. The flowchart is an educational resource only and does not provide legal advice. AGC is a longstanding, active member of the coalition. A summary of the coordination process is provided below.
- EPA region notifies the Corps whether they will provide comments on a draft approved jurisdictional determination (AJD). If yes, then comments need to be made within 10 business days.
- EPA region may choose to elevate the draft AJD within the 10 business day period to headquarters for review or guidance.
- If EPA region provides comments within the 10 business days, then the agencies must coordinate and make every attempt to resolve any issues. Any meetings must be held within the 10 business day coordination period. After the initial coordination, the Corps may pull the draft AJD for reconsideration or the Corps may provide EPA region with a revised draft AJD. During this step, EPA may choose to elevate the draft AJD to headquarters or notify the Corps that they can proceed with the AJD.
- If a draft AJD is elevated to headquarters (HQ) then EPA HQ and Corps HQ will have 10 business days to coordinate. If a mutual decision is made, then headquarters may provide guidance for the local region and district to proceed. If no mutual decision is made, then EPA provides guidance and the Corps district will need resubmit a revised final AJD describing how EPA’s guidance was applied.
- EPA retains ultimate administrative authority to construe geographic jurisdiction. EPA HQ may notify the Corps that it plans to make a project-specific jurisdictional decision covered by the draft AJD. This decision would be binding.
- An AJD issued after consideration of HQ-level guidance received through the coordination process is an appealable action.
For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.