Jurisdictional Determinations

21 April 2020 - EPA and Army Publish the Navigable Waters Protection Rule The Environmental Protection Agency (EPA) and the Department of the Army’s Navigable Waters Protection Rule: Definition of “Waters of the United States” was published in the Federal Register. This final rule establishes the scope of federal regulatory authority under the Clean Water Act. The Navigable Waters Protection Rule includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated. The final rule will become effective on June 22, 2020. The published version is 93 pages, and the citation is: 85 FR 22250.  The Federal Register notice is available at https://www.federalregister.gov/documents/2020/04/21/2020-02500/the-navigable-waters-protection-rule-definition-of-waters-of-the-united-states. Additional information about the rule can be found on the EPA website at https://www.epa.gov/nwpr.

A jurisdictional determination (JD) is the process of identifying waters of the United States, including streams and wetlands, regulated by the Corps of Engineers under Section 404 of the Clean Water Act within a given project area.  A JD for potential wetland areas requires the use of the 1987 Corps of Engineers Wetland Delineation Manual (1987 Manual) along with the applicable Regional Supplement to the 1987 Manual.  Jurisdictional wetlands require evidence of hydrophytic vegetation (plants that can grow in saturated soil), hydric soils (soils that develop their specific characteristics due to frequent inundation), and hydrology (water supply to the area).  A JD for streams requires identifying streams and other topographic features that have the potential to convey water downstream, ultimately to a navigable waterway.   A JD report detailing the findings of a field investigation prepared by the applicant (or their agent) should be submitted to the Corps of Engineers for verification.  It is necessary for a JD to be verified by the Corps prior to evaluating its associated Section 404 permit application.

Traditionally Navigable Waters