Informational Requirements for Jurisdictional Determinations to be Issued by the Army Corps of Engineers (Corps) Under the Clean Water Act (CWA)

Focus Area

Water Quality/Wetlands

Subcommittee

Natural Resources

Status

Archived

Cost

Under $99,000

Timeframe

1-2 years

Research Idea Scope

TERI Administrator Note (January 2009): Funded as NCHRP Project 25-25 (52).

Background:

Under the Clean Water Act, the Corps is delegated the authority to permit the discharge of dredged or fill material in waters of the U.S.  Waters of the U.S. are defined in the Corps/EPA regulations (33 CFR 328.3(a) and include all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce.  Waters has also been construed to include wetlands, prairie potholes, wet meadows, etc.

The Corps exerted CWA jurisdiction over nearly all natural water bodies, including wetlands that were used or could be used as habitat by migratory birds, based on a 1985 EPA Migratory Bird Memo which was later adopted by the Corps as the Migratory Bird Rule (MBR) in the preamble to their 1986 regulations.  In 2001, the Supreme Court invalidated the MBR in Solid Waste Agency of Northern Cook County (SWANNCC) v Corps, which held that isolated, intrastate, non-navigable waters could not be regulated under the CWA based solely on the presence of migratory birds.  However, it was generally believed that isolated waters and other waters might be considered jurisdictional where they had the necessary link to either navigable waters or interstate commerce.  Guidance issued in 2003 advised field staff that they must seek formal, project specific HQ approval prior to asserting jurisdiction over waters based solely on the [commerce] factors listed in 33 CFR 328.3 (a)(3).  A Jurisdiction Determination information Sheet and a Determination of No Jurisdiction Information Sheet were developed.

In 2006, the Supreme Court again addressed the jurisdictional scope of Section 404, specifically the term “waters of the U.S.” in Rapanos v U.S.  The decision provided two new analytical standards for determining whether water bodies that are not traditional navigable waters (TNWs), including adjacent wetlands.  Of critical concern to state DOTs is the exertion of jurisdiction if “a water body, in combination with all wetlands adjacent to that water body, has a significant nexus with TNWs.”

As a consequence of this decision, the EPA and Corps developed guidance which requires the application of the new standards as well as a greater level of documentation to support an agency JD for a particular water body.  In addition, the agencies now require that all determinations for non-navigable, isolated waters be elevated for Corps and EPA HQ review prior to the District making a final decision on the JD.

Recent Guidance by the Corps HQ to Districts concerning JDs requires an increased amount of information and detail to document all JDs, and in particular, those involving significant nexus evaluation.  In and of itself, the Guidance requirements add significantly to the submittal requirements and time frames for permit applications.  For transportation projects, this has the potential to cause significant delays in obtaining 404 permits as well as associated increases in costs given that long, linear projects with multiple areas of impact can require hundreds of jurisdictional determinations.  The regulatory burden on both the applicant and the Corps District staff will have a significant impact on the ability of DOTs to adequately provide for a safe and adequate transportation system.

This issue has developed only within the past year as a result of the Rapanos decision. The 2006 Supreme Court decision and June, 2007 Instructional Handbook issued by the Corps are the primary sources of information on this matter. In addition, a review of discussion and comments on this matter posted on the FHWA Re: NEPA website indicates a critical concern from a large number of DOTs nationwide.  An example which reflects many of the commenters noted “We have experienced considerable delays in obtaining 404 permits since the new guidance on jurisdictional determinations.  Not sure what other states have experienced in the past, but our timelines have doubled for obtaining permits.”[1]

A critical issue facing FHWA and DOTs is the nationwide aging transportation infrastructure, in particular, deteriorated and structurally deficient bridges.  The immediacy of this problem has gained the attention of the highest levels of government.  An increased regulatory burden, longer timeframes, and added costs associated with processing permits will significantly affect DOTs ability to address this critical infrastructure issue.  This research effort will assist in streamlining the permit process and control workload and costs for DOTs and the Corps.

Research Objective:

The objective of this research is to develop a scope of work for transportation design and environmental staff (agency and/or consultant) detailing the information and level of detail required to support jurisdictional determinations by the Corps under the CWA Section 404.  The intent would be to streamline the JD process, reduce delay, and control costs for both the transportation agencies and the Corps.

Specific Tasks:

Task 1: Review the Rapanos Decision, Corps Jurisdictional Determination Instructional Guidebook, applicable Corps Regulatory Guidance Letters, and other relevant memos and directives issued by Corps HQ and District offices.

Task 2: Review a range of JDs issued since Decision to assess informational requirements being applied by Corps District Offices.  The focus would be on those involving “significant nexus” determinations.

Task 3: Survey DOTs and Corps Districts on experience with JDs, focusing on any increase in submittal requirements, level of effort, time and cost implications.  Interview select DOTs and Corps Districts based on results of survey.

Task 4: Provide a “scope of work” for DOT design and environmental staff which identifies standard informational needs and appropriate level of effort to adequately address the need for jurisdictional determinations.



[1] Re:NEPA, comment by S. Schmidt posted on 8/13/2007.

Suggested By

Dianna Noble, SCOE Natural Systems and Ecological Communities Subcommittee

Submitted

10/19/2007