Jurisdictional Determinations

Information for our Customers:

The identification and location of jurisdictional Waters of the United States (which includes wetlands) regulated by the U.S. Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act of 1977, is physically determined through a process known as a Jurisdictional Determination (JD). The method of performing a JD employs a multi-parameter approach defined in Technical Report Y-87-1, Corps of Engineers Wetlands Delineation Manual, dated January 1987, and supplemental guidance. It generally requires positive evidence of hydrophytic vegetation, hydric soils, and wetlands hydrology for a determination that an area is a wetland.

The first step in the permit application process is to make a JD. The JD provides important information to a landowner or investor for planning purposes or carrying out certain activities on a given parcel of land. It is essential in making an application for a permit from the Corps to determine if work would occur in wetlands or navigable waters of the United States.

On June 5, 2007, the Corps and U.S. Environmental Protection Agency (EPA) issued joint guidance implementing the Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States (“Rapanos”) which addresses the jurisdiction over waters of the United States under the Clean Water Act (CWA). This guidance will be used by EPA regions and Corps Districts to ensure that JDs, permitting actions, and other relevant actions are consistent with the Rapanos decision and supported by the administrative record.

Implementation of the Rapanos decision and guidance requires more thorough documentation of JDs using a standardized Approved Jurisdictional Determination Form (“JD form”) and posting of approved JD forms on our District’s website. Procedures for conducting an approved JD and documenting practices to support an approved JD, including completing the JD Form, is provided in the U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook (“Guidebook”). The Guidebook clarifies commonly used terms on the JD Form, presents an overview on jurisdictional practices, and supplements the JD Form instructions.

The JD Form, Guidebook, and additional information on the Rapanos guidance may be found on the Corps’ website at http://www.usace.army.mil/cw/cecwo/reg/ or on EPA’s website at http://www.epa.gov/owow/wetlands/.

During the first six months implementing this guidance, the Corps and EPA invite public comments on case studies and experiences applying the guidance. The agencies, within nine months from the date of issuance, will reissue, revise, or suspend the guidance after carefully considering the public comments received and field experiences with implementing the guidance. Comments can be submitted to docket EPA-HQ-OW-2007-0282 through www.regulations.gov. Federal Register Notice of extension of the comment period by 45 days for the Rapanos guidance, see Special Public Notice 07-79 for details.

Detailed instructions for submitting a request for jurisdictional determination can be found here.

To view recent jurisdictional determinations (JDs) made by the Baltimore District, Army Corps of Engineers click here.