Honigman Alert Re: Corps CWA Jurisdictional Determinations Letter

Jul 3: Honigman Miller Schwartz and Cohn LLP (Honigman), one of the WIMS-EcoBizPort corporate sponsors, issued an Environmental Alert drawing attention to an important June 26, 2008, Regulatory Guidance Letter (No. 08-02, 7-pages+attachment) from the United States Army Corps of Engineers regarding Jurisdictional Determinations (JDs) under Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 the Rivers and Harbors Act of 1899 (RHA).

The Corps issues jurisdictional determinations in order to identify and delineate waters under the Corps’ jurisdiction, such as wetlands or other navigable waters. Honigman indicates that the June 26, 2008, Letter explains the two types of JDs issued by the Corps, i.e., an Approved JD and a Preliminary JD. The Letter also discusses when an Approved JD is required, and when a person can decline to request and obtain an Approved JD and elect to use a Preliminary JD instead.

According to the Letter, 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." If jurisdictional water is deemed present, then an Approved JD can serve as an initial step in the permitting process. An Approved JD will specifically identify and delineate the waterbodies and wetlands that are subject to the Corps’ jurisdiction. Alternatively, an Approved JD may document that no jurisdictional waters exist at a site. An Approved JD can be relied upon for up to five years, can be used as evidence in a CWA citizen suit, and is a final agency action that is immediately appealable.

Honigman explains that a Preliminary JD, on the other hand, is a non-binding opinion that there may be jurisdictional water of the United States on a particular site. It is neither definitive nor authoritative. A Preliminary JD is, therefore, advisory and not appealable. The recipient of a Preliminary JD can later request an Approved JD.

The Corps will provide an Approved JD when: (1) a party requests an Approved JD; (2) a party contests jurisdiction over a particular body of water; (3) a party appeals from a permit decision that was not based on an Approved JD; or (4) if the Corps determines that jurisdiction does not exist over a particular body of water. While a landowner, permit applicant, or other affected party can elect to request an Approved JD, it can also decline to request an Approved JD and may instead obtain a Corps individual or general permit authorization based on either a Preliminary JD, or, where appropriate, no JD at all.

A Preliminary JD may be used, for example, to waive or set aside questions regarding CWA/RHA jurisdiction over a particular site in order to expedite Corps permit authorization. An affected party may even make an informed, voluntary decision to obtain a Preliminary JD in situations where the indications suggest that no jurisdictional waters are present; however, the Letter states that "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." The Corps may also use Preliminary JDs instead of Approved JDs in enforcement actions where access to a site is impractical or unauthorized.

The Letter states that the Corps is now required to use a specified form whenever a Preliminary JD is issued. The form, called the Preliminary Jurisdictional Determination Form (Preliminary JD Form), sets forth the minimum requirements for a Preliminary JD and provides information for the requesting party regarding the option to request an Approved JD and appeal rights. According to the Letter, the information on a Preliminary JD Form should be limited to the amount and location of wetlands and waterbodies on a site, and should not contain the level of detail required for a permit decision. The Letter also states that the type of information collected to support the decision on a permit application, such as decisions and judgments on environmental impacts and public interest determinations, will be the same whether the permit application was preceded by a Preliminary JD or an Approved JD.

The Letter notes that a key distinction between an Approved and a Preliminary JD is that a Preliminary JD cannot be used as a finding that there are no jurisdictional waters on a site. Only Approved JDs can make such a determination. However, the Letter states that the Corps retains the right to issue a "no-permit required" letter to indicate that a certain proposed activity is not subject to the CWA or RHA. A "no-permit required" letter, however, does not make any determinations regarding the presence or absence of jurisdictional waterbodies on a site.

Honigman notes that, "The Letter does not address the decision-making process behind the issuance of JDs." For guidance on the jurisdiction of the CWA and the RHA, the Letter refers to regulations promulgated by the Corps, and the Corps’ June 19, 2007 memorandum entitled "Memorandum re: Clean Water Act (CWA) Jurisdiction Following the U.S. Supreme Court Discussion in Rapanos v. United States."

Access the Honigman Alert posted on the WIMS-EcoBizPort website and link to the complete letter and contact information (click here). Access the WIMS-EcoBizPort Special Report on the Rapanos decision and related issues (click here) [*Water]