On October 31, the U.S. Army Corps of Engineers (“Corps”) issued the first Regulatory Guidance Letter (“RGL”) of the Obama Administration, seeking to clarify the applicability and use of jurisdictional determinations (“JDs”). The RGL supersedes two prior RGLs on JDs issued during the George W. Bush Administration, RGL 07-01 and RGL 08-02.

Background

The RGL was issued in response to the U.S. Supreme Court’s unanimous decision earlier this year in U.S. Army Corps of Engineers v. Hawkes Co., in which the Supreme Court held that approved JDs (“AJDs”) are final agency actions subject to judicial review under the Administrative Procedure Act, thereby giving landowners legal recourse to challenge them.

The Corps has long used AJDs and preliminary JDs (“PJDs”) as tools 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”). Both AJDs and PJDs specify which geographic areas will be treated as subject to regulation by the Corps under the CWA, the RHA or both.

Prior to the Hawkes decision, AJDs were only appealable through the Corps’ administrative appeals process. PJDs were nonbinding, allowing property owners and developers to voluntarily waive jurisdiction questions in order to expedite permitting.

The stated purpose of the RGL is to explain the differences between the two types of JDs and to provide guidance to Corps districts and the regulated public on when it may be appropriate to issue an AJD as opposed to a PJD, or when it may be appropriate to not issue any JD whatsoever.

Clarification on JDs in the RGL

The RGL clarifies that a definitive, official determination from the Corps that there are, or that there are not, jurisdictional aquatic resources on a parcel and the identification of the geographic limits of jurisdictional aquatic resources on a parcel can only be made by means of an AJD. The RGL indicates the Corps will issue an AJD upon receiving a request for a formal jurisdictional determination, provided that the Corps is allowed legal access to the property and is otherwise able to obtain information necessary to respond to the request based on a sound technical record. AJDs are legally binding, valid for a period of five years (subject to certain limited exceptions) and appealable.

In contrast, PJDs are only written indications that there may be jurisdictional waters on the property. According to the Corps, PJDs are advisory in nature and may not be appealed. In issuing a PJD, the Corps purportedly makes no legally binding determination as to whether jurisdiction exists over a given resource. The RGL indicates that a recipient of a PJD can later request and obtain an AJD if that becomes necessary or appropriate during the permit process or during the administrative appeal process.

An individual who wishes to obtain a JD must request it. The Corps will then work with the requestor to determine what form of JD will best serve his or her needs. Factors considered include the requestor’s preference and reasons for the request, whether a permit authorization is associated with the request and the characteristics of any proposed activity needing authorization.

Under the RGL, the ultimate decision of whether to issue a JD is left to the discretion of the Corps district engineer. The RGL directs the district engineer to set reasonable priorities based on the district’s workload and available regulatory resources. The guidance also suggests that it may be reasonable for the district engineer to give higher priority to a JD request when it accompanies a permit request.

Following the Hawkes decision, some questioned whether the Corps would limit the use of AJDs going forward. However, in the RGL, the Corps recognizes the value of JDs to the public and reaffirms its commitment to continue its practice of providing JDs when requested to do so. Nonetheless, questions remain whether the process for obtaining AJDs, particularly for large energy projects, will, in practice, become more difficult and time-consuming, given that any AJD may ultimately be challenged in court.