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Securing a Jurisdictional Determination

Swamp Stomp

August 20, 2013

Volume 13, Issue 34

Permit Guidebook

 

A Jurisdictional Determination also known as a “JD” represents that US Army Corp of Engineers (Corps) determination of the presence and/or extent of “waters of the US” on a property. However, there are two types of JD’s. One represents the official findings of the Corps and the other is more or less an estimate. Both JD’s have their purposes. It is important to recognize the difference between the two types because one could get you into a lot of trouble. More …..

Approved JD’s

An approved JD is 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 on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the Clean Water Act and/or the Rivers and Harbors Act.

An approved JD:

  1. Constitutes the Corps’ official , written representation that the JD’s findings are correct;
  2. Can be relied upon by a landowner, permit applicant, or other “affected party” (as defined at 33 C.F.R. 331.2) who receives an approved JD for five years (subject to certain limited exceptions explained in RGL 05-02);
  3. Can be used and relied on by the recipient of the approved JD (absent extraordinary circumstances, such as an approved JD based on incorrect data provided by a landowner or consultant) if a CWA citizen’s lawsuit is brought in the Federal Courts against the landowner or other “affected party,” challenging the legitimacy of that JD or its determinations; and
  4. Can be immediately appealed through the Corps’ administrative appeal process set out at 33 CFR Part 33

If wetlands or other water bodies are present on a site, an approved JD for that site will identify and delineate those water bodies and wetlands that are subject to Clean Water Act jurisdiction, and serve as an initial step in the permitting process.

Preliminary JD’s

Preliminary JDs are non-binding, “… written indications 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 advisory in nature and may not be appealed.”

The main purpose of a Preliminary JD is speed a project along. There are several scenarios where this type of JD would accomplish this.

  1. An applicant, or other “affected party” may elect to use a preliminary JD to voluntarily waive or set aside questions regarding CWA jurisdiction over a particular site, usually in the interest of allowing the landowner or other “affected party” to move ahead expeditiously to obtain a Corps permit authorization where the party determines that is in his or her best interest to do so.
  2. For purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S.
  3. Preliminary JDs are also commonly used in enforcement situations because access to a site may be impracticable or unauthorized, or for other reasons an approved JD cannot be completed in a timely manner. In such circumstances, a preliminary JD may serve as the basis for Corps compliance orders (e.g., cease and desist letters, initial corrective measures). The Corps should support an enforcement action with an approved JD unless it is impracticable to do so under the circumstances, such as where access to the site is prohibited.

It is the Corps’ goal to process both preliminary JDs and approved JDs within 60 days as detailed in paragraph 5 below, so the applicant or other affected party’s choice of whether to use a preliminary JD or approved JD should not affect this goal.

In 2008 the Corps published a Regulatory Guidance Letter (RGL) No.08-02 dated 26 June 2008. This RGL should be consulted prior to applying for either type of JD. It is also important to note that it is also required that a JD form be completed and submitted with the JD application. This form sets forth the data required to make the JD determination. Most Corps districts have guidance on how to fill out the form and “short cuts” that are district specific. The above RGL and attached JD form sometimes referred to as the “Rapanos Form” can be found here ==> RGL 08-02.

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