The United States Army Corps of Engineers has issued its first Regulatory Guidance Letter (“RGL”) in 8 years. The new RGL supersedes two previous guidance letters (RGL 07-01 “Practices for Documenting Jurisdiction under Sections 9 & 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act” and RGL 08-02 “Jurisdictional Determinations.”) and describe differences between “approved” jurisdictional determinations (“AJDs”) and “preliminary” jurisdictional determinations (“PJDs”). Issuance of RGL 16-01 appears to be motivated by a recent US Supreme Court decision holding that “approved” jurisdictional determinations are subject to judicial review (US Army Corps of Engineers v Hawkes Co., 136 S.Ct. 1807 (2016)) and questions on that decision’s impact on the Corps’ willingness to issue JDs.
AJDs are described in RGL 16-01 as a “definitive, official determination that there are, or that there are not, jurisdictional aquatic resources on a parcel.” The Corps notes that a PJD on the other hand only indicates that there “may be” jurisdictional waters on a parcel and that a PJD does not represent a “legally binding determination of any type whether [Corps] jurisdiction exists over the particular aquatic resource in question.” In practice, PJDs are frequently used to speed permitting by avoiding the potentially lengthy Corps process of determining whether resources fall within their jurisdiction or not. RGL 16-01 reaffirms that the Corps will continue to provide JDs as a service while reemphasizing its position, as it had in RGL 08-02, that while permit applicants may agree to use a PJD for permitting decisions, the PJD itself is not appealable.
RGL 16-01 and an associated Q&A, reference chart and Corps generated questions to help determine when a AJD, PJD or no JD may be appropriate can be found here:
http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/juris_info/