On June 26, 2008, the U.S. Army Corps of Engineers issued Regulatory Guidance Letter 08-02, outlining the differences between an Approved Jurisdictional Determination (“Approved JD”) and a Preliminary Jurisdictional Determination (“Preliminary JD”), and describing their use in the Clean Water Act § 404 permitting process. The Guidance was issued in an attempt to refine the Corps’ June 19, 2007 Policy Memorandum regarding "Clean Water Act Jurisdiction following U.S. Supreme Court decision in Rapanos v. United States." The Rapanos policy had indicated that § 404 permit applications may only be processed after an Approved JD has been issued.
A Preliminary JD is advisory in nature, and is only used as a written indication that there “may be” waters of the United States on the property. Pursuant to RGL 08-02, an applicant for a § 404 permit may elect to request that the Corps proceed on its application on the basis of a Preliminary JD, rather than an Approved JD. Under a Preliminary JD, the Corps will treat all waters that will be affected in any way by the permitted activity as if they are jurisdictional, and the applicant will be deemed to have waived its right to challenge the existence and extent of jurisdictional waters at the site for all purposes in connection with the permit application.
On the other hand, an Approved JD is a binding, final agency decision that waters of the U.S. either exist or do not exist on the property. Thus, an approved JD typically requires “reliable and verifiable” information, obtained through a site visit. The use of a Preliminary JD in connection with the permit application process obviates the need for such a site visit.
RGL 08-02 states the Corps’ goal is to process both requests for Preliminary JDs and requests for Approved JDs within 60 days, and further states that Corps districts should not give permit applications using Preliminary JDs priority over Approved JDs. Nevertheless, there is a general belief among those who routinely interact with Corps district offices that Corps staff have been overburdened with addressing requests for Approved JDs, to the point that processing of § 404 permit applications has been delayed. To the extent this is accurate, issuance of this new regulatory guidance should help alleviate some of that workload, as in many cases permit applicants do not intend to challenge Corps jurisdiction.