Swamp Stomp
Volume 16, Issue 45
On Monday October 31, 2016 the U.S. Army Corps of Engineers (Corps) released its first Regulatory Guidance Letter (RGL) of the year. RGL 16-01 explains the differences between approved and preliminary jurisdictional determinations (JDs) and provides guidance to the field and the regulated public on when it may be appropriate to issue an approved jurisdictional determination (AJD) as opposed to a preliminary jurisdictional determination (PJD), or when it may be appropriate to not prepare any JD whatsoever.
AJDs and PJDs are used by the Corps to help implement Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 of the Rivers and Harbors Act of 1899 (RHA). The different types of JDs identify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.
In this Regulatory Guidance Letter, the U.S. Army Corps of Engineers understands the importance of JDs and confirms its commitment to provide JDs when asked to as long as the guidelines are met. “This clarification RGL does not change or modify the definitions of AJDs and PJDs included in Corps regulations, the documentation practices for each type of JD, or when an AJD is required by the terms of its definition (e.g., only an AJD can be used to determine presence/absence of waters of the U.S.). This RGL also does not address which aquatic resources are subject to CWA or RHA jurisdiction” (U.S. Army Corps of Engineers).
The goal of this Regulatory Guidance Letter is to promote communication between Corps districts and those who want to get the Corps views on jurisdiction. This is to ensure that all parties have a mutual understanding of the different options for addressing the Clean Water Act and the Rivers and Harbors Act’s geographic jurisdiction so that the best mechanism for handling the needs of a person requesting a JD can be figured out. “This RGL does not limit the discretion afforded a district engineer by the regulations to ultimately determine, consistent with the guidance below, how to respond to a request for a JD. After a requestor is fully informed of the options available for addressing geographic jurisdiction, the Corps will continue its current practice of providing an AJD consistent with this guidance if the party continues to request one” (U.S. Army Corps of Engineers). In order to receive the most urgent JDs first, the district engineer needs to place the request in order based on the district’s workload and available regulatory resources. This RGL touches upon similar subjects to those discussed in RGLs 07-01 and 08-02. This RGL, 16-01, supersedes what was discussed in both RGL 07-01 and RGL 08-02.
We will be discussing this Regulatory Guidance Letter in our “Waters of the US” online workshop on December 2, 2016 from 1 PM to 3 PM. Please consider joining us to learn more about this very important announcement. Webinar tickets can be purchased at: https://swampschool.infusionsoft.com/app/storeFront/showProductDetail?productId=737
Source: U.S. Army Corps of Engineers. “REGULATORY GUIDANCE LETTER: Jurisdictional Determinations.” U.S. Army Corps of Engineers. U.S. Army Corps of Engineers, 31 Oct. 2016. Web. 03 Nov. 2016.