EnviroNotes

By E. Ryan Murray, Attorney, Environmental Law Department, Bingham McHale LLP

On June 26, 2008 the United States Army Corps of Engineers (“Corps”) issued Regulatory Guidance Letter No. 08-02 (“RGL 08-02”) regarding approved and preliminary jurisdictional determinations (“JDs”). JDs are used by the Corps to implement permitting programs under Section 404 of the Clean Water Act (“CWA”) and Sections 9 and 10 of the Rivers and Harbors Act of 1899 (“RHA”). RGL 08-02 defines both approved and preliminary JDs and provides guidance to landowners, permit applicants, and other affected parties regarding when an approved JD is required and when a preliminary JD may be used.

Following the United States Supreme Court’s ruling in United States v. Rapanos, the Corps and the United States Environmental Protection Agency (“EPA”) issued guidance establishing a process for determining whether wetlands and other water bodies are subject to permitting under the CWA and RHA. In conjunction with the Rapanos guidance, the Corps issued RGL 07-01 requiring all CWA Section 404 permit applicants to obtain an “approved JD” for each water body impacted by a proposed project, thereby eliminating the past practice of allowing the use of non-binding preliminary JDs to expedite the permitting process. The elimination of preliminary JDs caused significant increases in expenditures of time and resources in situations where applicants did not contest or waived jurisdiction. Because RGL 07-01 reduced the Corps’ flexibility in addressing jurisdictional issues and substantially increased the length of time to process a permit application, the Corps revised its guidance in RGL 08-02 to restore flexibility to the permit process by allowing the use of preliminary JDs and clarifying the process for obtaining an approved JD. RGL 08-02 took effect on June 26, 2008 and supersedes any inconsistent guidance regarding JDs contained in RGL 07-01.

RGL 08-02 defines a “approved JD” as “an official Corps determination that jurisdictional ‘waters of the United States,’ or ‘navigable waters of the United States,’ or both, are either present or absent at a particular site.” The Corps will provide an approved JD where: (1) an approved JD or official jurisdictional determination is requested; (2) jurisdiction is contested; or (3) the Corps determines jurisdiction does not exist.

RGL 08-02 defines a “preliminary JD” as a “nonbinding written indication that there may be waters of the United States, including wetlands, on a parcel or indications of the approximate location(s) of waters of the United States or wetlands on a parcel.” Preliminary JDs are non-binding, advisory, and non-appealable decisions stating that there may be jurisdictional waters on a property. A preliminary JD does not make a finding that jurisdictional waters or wetlands are absent. Land owners, developers, and other affected parties who desire to waive jurisdiction questions may seek a preliminary JD in order to expedite the permitting process. Permit decisions based on a preliminary JD assume that all waters and wetlands on the site are jurisdictional waters.

Under RGL 08-02, approved and preliminary JDs must be completed by the Corps within 60 days of receipt of a request. Parties receiving preliminary JDs may later choose to request an approved JD.

You can obtain a copy of RGL 08-02 at www.usace.army.mil/cw/cecwo/reg/rgls/rgl08-02.pdf.

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