Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

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US Army Corps

of Engineers®

No. 05-02

REGULATORY GUIDANCE

LETTER

Date: June 14, 2005

SUBJECT: Expiration of Geographic Jurisdictional

Determinations of Waters of the United States

1.

Purpose and Applicability

a. Purpose. The purpose of this guidance is to

provide a consistent national approach to reevaluating

jurisdictional determinations, including wetland delineations. This provides certainty to the regulated public

and ensures their ability to rely upon approved jurisdictional determinations (formerly called final jurisdictional determinations) for a definite period of time.

Approved and preliminary jurisdictional determinations are defined in the Corps regulation at 33 CFR

331.2. This Regulatory Guidance Letter (RGL) reaffirms that all approved geographic jurisdictional determinations completed and/or verified by the Corps must

be in writing and will remain valid for a period of five

years, unless new information warrants revision of the

determination before the expiration date, or a District

Engineer identifies specific geographic areas with rapidly changing environmental conditions that merit reverification on a more frequent basis. Preliminary jurisdictional determinations are not definitive determinations of the presence or absence of areas within

regulatory jurisdiction and do not have expirations

dates. This RGL rescinds and replaces RGL 94-01 and

its predecessor RGL 90-06.

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b. Applicability. This guidance applies to all approved jurisdictional determinations for waters of the

United States made pursuant to Section 404 of the

Clean Water Act and for navigable waters of the

United States made pursuant to Sections 9 or 10 of the

Rivers and Harbors Act of 1899. This RGL does not apply to Special Cases or 404(f ) exempted wetlands designated by the U.S. Environmental Protection Agency.

2.

General Considerations

a. As part of its permit program, the Corps must

determine the extent of its geographic jurisdiction. Title 33 CFR Parts 328 and 329 define “waters of the

United States” and “navigable waters of the United

States”, respectively, and prescribe policy, practice and

procedures to be used in determining the extent of

such jurisdiction. In addition, Title 33 CFR Part 331,

Administrative Appeal Process, provides terms and

definitions for jurisdictional determinations. Since

wetlands and other waters of the United, States are

affected over time by both natural and man-made activities, local changes in jurisdictional boundaries can

be expected to occur. As such, jurisdictional determinations cannot remain valid for an indefinite period of

time.

b. Procedures for making jurisdictional determinations for waters of the United States are also detailed in the Memorandum of Agreement Between the

Department of the Army and the Environmental Protection Agency Concerning the Determination of the

Geographic Jurisdiction of the Section 404 Program

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and the Application of the Exemptions Under Section

404(f ) of the Clean Water Act (MOA), dated 19 January

1989, later amended on 4 January 1993. Among other

items, the MOA states that all approved jurisdictional

determinations must be in writing.

c. The Corps has issued past guidance regarding

the expiration of geographical jurisdictional determinations, including RGL 94-01. Due to Department of

Army and Department of Agriculture withdrawal from

the 1994 Memorandum of Agreement Concerning the

Delineation of Wetlands for Purposes of Section 404 of

the Clean Water Act and Subtitle B of the Food Security

Act, and amendments to the Food Security Act in Farm

Bills since 1994, elements of RGL 94-01 are no longer

valid.

3.

Guidance.

a. All approved jurisdictional determinations

must be verified in writing in the form of a letter to the

project proponent. The Corps must include a statement

that the determination is valid for a period of five years

from the date of the letter, unless new information warrants revision of the determination before the expiration date or a District Engineer has identified, after

public notice and comment, that specific geographic areas with rapidly changing environmental conditions

merit re-verification on a more frequent basis.

b. When making wetland delineations, it is

very important to have complete and accurate documentation that substantiates the Corps decisions. At

a minimum, decisions must be documented on the

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standardized jurisdictional determination information

sheet established by Headquarters and provided to

the districts on August 13, 2004 (or as further

amended by Headquarters). Documentation must allow for a reasonably accurate replication of the delineation or determination at a future date. In this regard,

documentation will normally include information such

as data sheets, site visit memoranda, maps (including

office resource documents), sketches, and in some cases

surveys, photographs documenting the Ordinary High

Water Mark, tributary connections, etc.

c. Written wetland delineations made prior to 14

August 1990 (effective date of RGL 90-06) with a specified time limit imposed by the Corps, will be valid until the date specified. Oral confirmations of Corps

geographic jurisdiction have not been valid since 14

August 1990. Effective immediately, all written wetland jurisdictions without a specific time limit are no

longer valid.

d. Wetland delineations and/or jurisdictional determinations should be finalized as soon as practicable

considering weather, workload, and other factors, so

that property owners may initiate the appeals process

should they choose to do so.

e. Additional guidance for expiration of jurisdictional determinations on lands designated as prior

converted cropland (PC) by the Natural Resources

Conservation Service is addressed in a separate regulatory guidance letter.

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f. Districts retain flexibility in deciding the degree of investigation and resource allocation needed

when revising a jurisdiction determination.

g. Jurisdictional delineations associated with issued permits and/or authorization are valid until the

expiration date of the authorization/permit.

4. Duration. This guidance remains in effect unless

revised or rescinded.

/s/ Don T. Riley

DON T. RILEY

Major General, US Army

Director of Civil Works

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US Army Corps of Engineers U.S. Army Corps

of Engineers Headquarters Website

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ArticleCS

5 January 2022 – Navigable Waters Protection

Rule Vacatur

HQ USACE REGULATORY

Published Jan. 5, 2022

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The Environmental Protection Agency and U.S. Army

Corps of Engineers (“the agencies”) are in receipt of the

U.S. District Court for the District of Arizona’s August

30, 2021, order vacating and remanding the Navigable

Waters Protection Rule in the case of Pascua Yaqui

Tribe v. U.S. Environmental Protection Agency. In light

of this order, the agencies have halted implementation

of the Navigable Waters Protection Rule (“NWPR”) nationwide and are interpreting “waters of the United

States” consistent with the pre-2015 regulatory regime

until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021 in order to better protect our

nation’s vital water resources that support public

health, environmental protection, agricultural activity,

and economic growth. The agencies remain committed

to crafting a durable definition of “waters of the United

States” that is informed by diverse perspectives and

based on an inclusive foundation.

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On November 18, 2021, the agencies announced the

signing of a proposed rule to revise the definition of

“waters of the United States.” This proposal marks a

key milestone in the regulatory process announced in

June 2021. The agencies propose to put back into place

the pre-2015 definition of “waters of the United

States,” updated to reflect consideration of Supreme

Court decisions. This familiar approach would support

a stable implementation of “waters of the United

States” while the agencies continue to consult with

states, tribes, local governments, and a broad array of

stakeholders in both the current implementation and

future regulatory actions.

A durable definition of “waters of the United States” is

essential to ensuring clean and safe water in all communities—supporting human health, animal habitat,

agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a

review conducted by the agencies as directed by the

January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring

Science to Tackle the Climate Crisis.”

Further details about the agencies’ plans, including information regarding the upcoming public meetings

and proposed rule docket can be found here.

An approved jurisdictional determination (“AJD”) is a

document provided by the Corps stating the presence

or absence of “waters of the United States” on a parcel

or a written statement and map identifying the limits

of “waters of the United States” on a parcel. See 33

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C.F.R. § 331.2. Under existing Corps’ policy, AJDs are

generally valid for five years unless new information

warrants revision prior to the expiration date. See U.S.

Army Corps of Engineers, Regulatory Guidance Letter

No. 05-02 § 1(a), p. 1 (June 2005) (Regulatory Guidance

Letter (RGL) 05-02).

As a general matter, the agencies’ actions are governed

by the definition of “waters of the United States” that

is in effect at the time the Corps completes an AJD,

not by the date of the request for an AJD. AJDs completed prior to the court’s decision and not associated

with a permit action (also known as “stand-alone”

AJDs under RGL 16-01) will not be reopened until

their expiration date, unless one of the criteria for revision is met under RGL 05-02. A NWPR AJD could

also be reopened if the recipient of such an AJD requests a new AJD be provided pursuant to the pre2015 regulatory regime. In that case, the Corps will

honor such request recognizing that if the recipient of

a NWPR AJD intends to discharge into waters identified as non-jurisdictional under the NWPR but which

may be jurisdictional under the pre-2015 regulatory

regime, such recipient may want to discuss their options with the Corps. AJD requests pending on, or received after, the Arizona court’s vacatur decision will

be completed consistent with the pre-2015 regulatory

regime.

As the agencies’ actions are governed by the regulatory

definition at the time of the action, permit decisions

made prior to the court’s decision that relied on a

NWPR AJD will not be reconsidered in response to the

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NWPR vacatur. Permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. The Corps will not rely on an

AJD issued under the NWPR (a “NWPR AJD”) in making a new permit decision. The Corps will make new

permit decisions pursuant to the currently applicable

regulatory regime (i.e., the pre-2015 regulatory regime). Therefore, for any currently pending permit action that relies on a NWPR AJD, or for any future

permit application received that intends to rely on a

NWPR AJD for purposes of permit processing, the

Corps will discuss with the applicant, as detailed in

RGL 16-01, whether the applicant would like to receive

a new AJD completed under the pre-2015 regulatory

regime to continue their permit processing or whether

the applicant would like to proceed in reliance on a preliminary JD or no JD whatsoever.

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Navigable Waters Protection Rue EPA

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