Over the past several months, several US Army Corps of Engineers (USACOE) districts have started using a new review process called Delineation Concurrence (DC). A DC provides concurrence that the delineated boundaries of wetlands on a property are a reasonable representation of the aquatic resources on-site. A DC does not address the jurisdictional status of the aquatic resources. The DC is often an email exchange and does not usually require a site visit.
The DC arose out of the need for the USACOE to streamline its review process with ever shrinking resources. The need for speed has been a major concern for the Corps as the number of projects under review have increased tremendously. The DC process is a very simple and quick process, but it has some limitations.
The most significant issue is that the DC does not verify jurisdiction. This remains with the Approved Jurisdictional Determination (AJD) process. The DC is like the Preliminary Jurisdictional Determination (PJD) process, but it does not require the field work associated with the PJD. The DC relies primarily on remote sensing, maps, and other third-party data to concur that aquatic resources are on a site. Neither of the DC or PJD procedures address the jurisdictional status of the aquatic resources.
The DC process still requires the consultant to preform a full wetland delineation. The consultants are on the hook for any inaccuracies represented to the Corps. If a third party challenges a DC, the consultant is the only one that will be defending the aquatic resource data. The Corps is not providing any “seal of approval” with a DC or PJD.
The main use of the DC is for Nationwide permits. If the applicant submits a permit request with a Prior Construction Notification (PCN) form, they can also request a DC at the same time. The Corps is discouraging “standalone” requests and prefers that the JD request be associated with a permit.
This can complicate matters with other regulatory entities and planning boards. For years the Corps has been training these agencies to require JDs before they issue approvals. It is going to take some time and a shift in thinking to get these agencies to no longer require JDs. It may also require formal changes in local ordinances as many municipalities have written the JD requirement into their municipal codes.
It is a reasonable question to ask why the Corps is doing this. In effect they seem to be backing out of whole JD process. In fact, they are.
In 2016, the Hawkes case was ruled upon by the Supreme Court of the US (SCOTUS). That case revealed that JDs are final agency actions that can be immediately appealed in court. This changed the role of the Corps in the JD process. They are no longer the final arbiter of what is a jurisdictional aquatic resource. A federal judge now makes that determination. The Corps acts as another (well informed) opinion.
There is a fair amount of risk associated with DCs. If a site has a waterbody on it that the consultant thinks is non-jurisdictional, the consultant is on the hook for that determination. This is true even if the Corps issues a full AJD. The liability for the accuracy of the jurisdictional data remains with the consultant and the applicant for DC requests. In the AJD scenario, the Corps would only become a co-defendant should the determination be challenged. The Corps makes it very clear that DCs and PJDs are non-binding and do not represent a jurisdictional opinion.
All of this opens the possibility for legal challenges to what is a deemed a jurisdictional aquatic resource under the Clean Water Act. Any project, big or small, can be challenged by a variety of third-party environmental groups, federal agencies like the EPA or Fish and Wildlife, or other public interest groups. The accuracy and defense of the site data remains with the consultant, the applicant, and the landowner.
This leads us into a discussion of whether there should be some sort of licensing or credentialing of aquatic resource delineators. It would be fair of an insurance company to question the credentials of someone who does this type of work before they issue an Errors and Omissions (E&O) policy or pay on a claim should the consultant be sued. It is envisioned that it would be some sort of state board would be needed to license aquatic resource delineators.
The Corps has implemented the DC program in over half of the U.S. Many other Corps Districts are considering it. It is a useful permitting tool, but it underscores who is ultimately responsible for the jurisdictional determination. The Corps has made it clear they will no longer assume responsibility.