On October 31, the Army Corps of Engineers ("ACOE") issued new guidance as to the types and prioritization of jurisdictional determinations (JDs). Regulatory Guidance Letter (RGL) 16-01 "Jurisdictional Determinations" has very little new guidance in reality. However, some key language in the RGL makes clear the real purpose behind the RGL.
What is a Jurisdictional Determination?
A Jurisdictional Determination (JD) is an official determination of the ACOE as to whether wetlands or streams fall under federal jurisdiction pursuant to the Clean Water Act. The Corps practice has been to issue either "Approved JDs" or "Preliminary JDs."
An "Approved JD" is a final legal determination that there are, or that there are not, wetlands or streams under federal jurisdiction. See, 33 U.S.C. 331.2 The "Approved JD" will also identify the geographic limits of the wetlands or streams on the property. An "Approved JD" can be either issued as a a "Stand Alone Approved JD" or it can be associated with a permit action.
A "Preliminary JD" is used to expedite the permitting process. It does not take as much time to issue a "Preliminary JD" because the ACOE simply presumes all the wetlands and streams on the property are jurisdictional. By presuming all wetlands/streams are under federal jurisdiction, a "Preliminary JD" negates the need for a site visit by the ACOE which expedites the permitting process. The "Preliminary JD" also will delineate the limits of wetlands on the property.
In United States Army Corps of Engineers v. Hawkes the Supreme Court concluded that JDs issued by the ACOE constitute final agency action under the Administrative Procedure Act thereby allowing immediate review in Court. This was a big win for property owners who were previously left with administrative appeals before the Army Corps of Engineers to challenge JDs.
The fact pattern in the Hawkes decision sheds light as to why the ACOE decided to issue the regulatory guidance letter. The landowner in Hawkes was facing a long and expensive permitting process to allow impacts to wetlands on its property. Prior to initiating the permitting process, the landowner sought a JD with the hope the wetlands would be determined non-jurisdictional. When the ACOE determine the wetlands were, in fact, jurisdictional the landowner sought to challenge the determination in Court rather than through an administrative appeal before the ACOE.
Now that the Supreme Court determined JDs can be challenged in Court, the ACOE was concerned that landowners would have a strong incentive to request JDs only to set up legal challenges in Court to the ACOE's jurisdiction.
Real Purpose Behind RGL 16-01
RGL 16-01 is the first RGL issued during the Obama Administration and the first RGL since 2008. The stated purpose of RGL 16-01 is to clarify the differences behind the an "Approved JD" versus a "Preliminary JD." The ACOE states the clarification will help the public choose which type of JD may be appropriate for their project.
The reality is there was little confusion between the types of JDs. The real purpose of the JD can be found in the following sentence on the first page of the RGL:
"The district engineer should set reasonable priorities on the district's workload and available resources. For example, it may be reasonable to give higher priority to a JD request when it accompanies a permit request."
This statement makes clear that the ACOE will prioritize processing "Approved JD" request with a permit application versus "Stand Alone Approved JD" request. The goal is to avoid issuing "Approved JDs" to landowners who may be making the request simply to challenge the JD in court and avoid permitting all together if the court challenge is successful.
Those seeking an "Approved JD" without submitting a permit application may be waiting a long time to get their determination.