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Regulatory News: The final rule defining the scope of waters protected under the Clean Water Act was published in the Federal Register on June 29, 2015. Additional information on the Rule may be found on the HQ Regulatory Program website.
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The U.S. Army Corps of Engineers has permitting authority over activities affecting waters of the United States. Waters of the United States include surface waters such as navigable waters and their tributaries, all interstate waters and their tributaries, natural lakes, all wetlands adjacent to other waters, and all impoundments of these waters.
Two federal statutes mandate Corps jurisdiction over navigable waterways and adjacent wetlands. These are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Section 10 of the Rivers and Harbors Act applies to all navigable waters of the United States and Section 404 of the Clean Water Act applies to all waters including wetlands that have sufficient nexus to interstate commerce. The diagram below illustrates the lateral limit where Section 10 and Section 404 apply. 
- Territorial Seas. The limit of jurisdiction in the territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles. (See 33 CFR 329.12)
- Tidal (Navigable) Waters of the U.S. The landward limits of jurisdiction in tidal waters:
Extends to the high tide line, or
When adjacent non-tidal waters of the United States are present, the jurisdiction extends to the limits identified for Non-Tidal Waters of the U.S.
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Non-Tidal Waters of the United States. The limits of jurisdiction in non-tidal waters:
In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or
When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands.
When the water of the United States consists only of wetlands the jurisdiction extends to the limit of the wetland.
The regulatory authorities and responsibilities of the Corps of Engineers are based on the following laws:
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the obstruction or alteration of navigable waters of the United States without a permit from the Corps of Engineers.
Section 404 of the Clean Water Act (33 U.S.C. 1344). Section 301 of this Act prohibits the discharge of dredged or fill material into waters of the United States without a Section 404 permit from the Corps of Engineers.
Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) authorizes the Corps of Engineers to issue permits for the transportation of dredged material for the purpose of dumping it into ocean waters.
Other laws may also affect the processing and evaluation of applications for Corps of Engineers permits. Among these laws are the National Environmental Policy Act, the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, the Endangered Species Act, the National Historic Preservation Act, the Federal Power Act, the Marine Mammal Protection Act, and the Wild and Scenic Rivers Act.
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Under the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001), directed that the U.S. Army Corps of Engineers does not have jurisdiction over isolated, intrastate, non-navigable waters under 33 C.F.R. § 328.3(a)(3), based on their use as habitat for migratory birds pursuant to preamble language commonly referred to as the “Migratory Bird Rule,” 51 Fed. Reg. 41217 (1986).
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The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers issued agency guidance regarding Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States (“Rapanos”). The agencies have issued this guidance to ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions being conducted under the CWA are consistent with the Rapanos decision and provide effective protection for public health and the environment. An Approved Jurisdictional Determination Form must now be completed by Corps personnel for all delineations verified by the Corps.
The Corps of Engineers receives thousands of requests each year to perform wetland delineations for potential applicants for permits under Section 404 of the Clean Water Act. Due to limited staff and resources, response time can be several months or longer. To expedite this process, the San Francisco District encourages applicants to use consultants to conduct wetland delineations, especially for large and/or complex areas. The San Francisco District is not authorized to recommend any private consulting services and advises applicants to check references and referrals of prospective consultants before contracting services.
All delineations must be conducted in accordance with the 1987 Corps of Engineers Wetlands Delineation Manual, or appropriate Regional Supplement, and submitted to the District for review and verification. Two Regional Supplements have been approved for use within the boundaries of the San Francisco District:
Please see the attached document for a list of requested information for verification of Corps' jurisdiction. The Aquatic Resources sheet of the Consolidated ORM Upload workbook is also requested for acceptance of delineation reports. This
spreadsheet facilitates efficient and accurate data entry of the aquatic
resources into the Corps' database.
The Consolidated ORM Upload workbook spreadsheet contains a
validation tool to ensure accuracy of the data. To run the validation
tool, first enter all data in the appropriate columns and tabs. Once you
have completed entering the data and have saved the document in a .csv
format, click the gold shield at the top of the workbook window. The
tool has a tooltip showing "Validate Worksheets." After clicking this
button, validation of data is performed and any possible errors are
added to the Validation tab. This tab is opened after the process is
complete to allow the user to see the output. The validation output
includes the tab (data type), column, and cell for where the possible
error was found and a brief explanation of the issue.
Approved jurisdictional determinations (JDs) and Preliminary JDs are tools used by the U.S. Army Corps of Engineers (Corps) 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).
Regulatory Guidance Letter (RGL) 08-02 explains the differences between these two types of JDs and provides guidance on when an approved JD is required and when a landowner, permit applicant, or other “affected party” can decline to request and obtain an approved JD and elect to use a preliminary JD instead.
Map and Drawing Standards have been established for the South Pacific Division Regulatory Program for maps and drawings submitted as part of delineations and applications for U.S. Army permits and jurisdictional determinations.
National Wetland Plant List (NWPL) - The updated NWPL provides the most recent list of wetland plants by species and their wetland ratings and should be referenced on data forms used in the wetland delineation.
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The following is a list of "no-jurisdiction" determinations made by the San Francisco District, U.S. Army Corps of Engineers, for sites with potential or actual waterbodies and wetlands that do not meet the definition of waters of the United States. This determination may be based on features not meeting wetland criteria as determined by the Corps 87 Wetland Delineation Manual and appropriate Regional Supplement(s), or lack of regulatory jurisdiction due to the Supreme Court decisions in Solid Waste Agency of Northern Cook County (SWANCC) vs. the U.S. Army Corps of Engineers, Rapanos v. United States, and/or Carabell v. United States. Click on the Summary Description to view additional information about the site and its location. |
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Date of No Jurisdiction Letter
(File Number)
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County
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Summary Description
(click on attached pdf file)
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June 16, 2016 (2016-00466N)
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Newell Ranch
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No Water |
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May 27, 2016 (2015-00478S)
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San Mateo
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No Water |
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January 19, 2016 (2015-00464S)
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San Francisco
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No Water |
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November 30, 2015 (2013-00149S)
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Alameda
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Isolated Waters |
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December 04, 2015 (2003-280180N)
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Sonoma
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Isolated Waters |
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September 23, 2015 (2015-00273N)
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Marin
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No Water |
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August 18, 2015 (2002-271030S)
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San Mateo
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No Water |
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July 14, 2015 (2015-00167S)
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Marin
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No Water |
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July 07, 2015 (2015-00167S)
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Contra Costa
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No Water |
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June 10, 2015 (2015-00172N)
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Marin
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No Water |
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May 05, 2015 (2015-00050N)
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Marin
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No Water |
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April 20, 2015 (2015-00011S)
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Santa Cruz
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No Water |
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March 16, 2015 (2011-00108N)
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Sonoma
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No Water |
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March 12, 2015 (2014-00047S)
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Alameda
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Isolated Waters |
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March 11, 2015 (2011-00108)
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Sonoma
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No Water |
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March 2, 2015 (2014-00151S)
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Santa Clara
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No Water |
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February 5, 2015 (2014-00151)
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Santa Clara
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Isolated Waters |
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May 9, 2014 (1998-24107)
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San Mateo
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Isolated Waters |
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January 16, 2013 (1992-196990)
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Alameda
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Isolated Waters |
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March 29, 2012 (2006-30384N)
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Sonoma
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No Water |
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November 22, 2011 (2003-28144N)
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Sonoma
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Wetland with No Significant Nexus to a TNW |
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September 21, 2011 (2011-00322N)
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Napa
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Artificial and Isolated Wetlands |
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June 9, 2011 (2004-28880N)
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Marin
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Artificial Lagoon |
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The following is a list of recently confirmed jurisdictional determinations made for waterbodies and wetlands that do meet the definition of waters of the United States. Click on the Summary Description to view additional information about the site and its location.
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File Name
(File Number)
Date of Jurisdiction Determination
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County
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Summary Description
(click on attached file)
RPW = Relatively Permanent Water
TNW = Traditional Navigable Water
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Rio Marin Mitigation Bank
(2016-00176N)
July 27, 2016
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Marin
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TNW & Adjacent Wetlands
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Canyon Oaks Condominiums
(2016-00169N)
July 27, 2016
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Sonoma
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RPW & Abutting wetlands
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#2 Fullerton Lane Restoration
(2016-00056N)
July 7, 2016
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Sonoma
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RPW
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Wagner Access Road, Calistoga
(2016-00193N)
June 28, 2016
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Napa
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RPW & Non-RPWs
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Pilarcitos Quarry
(2007-400411S)
April 20, 2016
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San Mateo
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RPW & Wetlands
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Mission Creek Mitigation Area
(2000-257860S)
March 22, 2016
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Alameda
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RPW
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Woodside Holding Property
(2015-00443N)
March 9, 2016
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Sonoma
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Wetlands adjacent to but not directly abutting RPWs
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Schaefer Ranch
(2002-272050S)
March 08, 2016
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Alameda
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RPW & Wetlands
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Hamilton Fields Sports Park
(2015-00420N)
March 07, 2016
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Marin
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RPW & Wetlands
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Hawthorne Mill Development Project
(2005-299100)
February 9, 2016
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Solano
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RPWs, Abutting and Adjacent Wetlands
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Lund Ranch II Development
(2002-269010S)
January 11, 2016
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Alameda
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RPW, Wetlands, Isolated Wetlands
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Lytton Residential Development
(2015-00357N)
November 11, 2015
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Sonoma County
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RPW & Wetlands
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Sunnyvale Water Pollution Control Plant
(2014-00284S)
September 22, 2015
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Santa Clara
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TNW and Adjavent Wetlands; RPW and Abutting Wetlands
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Faria Ranch
(2005-296780S)
September 15, 2015
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Contra Costa
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RPW, Abutting and Adjacent Wetlands
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Noyo Harbor Marina Mooring Basin Dredging
(2009-00026N)
September 11, 2015
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Mendocino
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TNW
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Port of Redwood City Berths 1 - 4 Maintenance Dredging
(2015-00058S)
August 24, 2015
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San Mateo
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TNW
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Larkspur Marina Maintenance Dredging
(2015-00036N)
August 24, 2015
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Marin
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TNW
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Fortuna Waste Water Treatment Plant JD
(2014-00444N)
August 21, 2015
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Humboldt
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Wetlands Adjacent to a non-RPW
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Roblar Road Quarry Access Road
(2009-00147N)
July 27, 2015
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Sonoma
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non-RPW
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450 Green Island Road Project
(2007-00829N)
July 13, 2015
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Napa
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non-RPW and Adjacent Wetlands
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Park Reserve Forces Training Area
(2004-284750S)
July 01, 2015
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Alameda
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RPW and Abutting Wetlands
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Port of Richmond's Terminal 2 Berth Maintenance Dredging
(2015-00092S)
April 20, 2015
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Contra Costa
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TNW
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100-110 Point San Pedro Road Maintenance Dredging
(2014-00042N)
April 01, 2015
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Marin
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TNW
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Redwood City Saltworks
(2002-267260)
March 19, 2015
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San Mateo
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Approved JD
Exhibit 1
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Sunnyvale Water Pollution Control Plant
(2009-00026N)
March 18, 2015
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Santa Clara
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TNW, a5, a6
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Marin Yacht Club Maintenance Dredging
(2015-00066N)
March 02, 2015
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Marin
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TNW
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Pacific Rod and Gun Club Remediation Project
(2014-00117S)
February 20, 2015
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San Francisco
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TNW and Adjavent Wetlands
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DeSilva Group - Sunol Valley Aggregate
(1995-21470S)
February 12, 2015
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Alameda
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RPW
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Victoria Oaks Subdivision
(2014-00402N)
February 10, 2015
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Sonoma
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RPW and Adjacent Wetlands
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Paradise Cay Yacht Harbor
(2015-00034N)
January 13, 2015
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Marin
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TNW
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Oakland Zoo California Exhibit Expansion
(2012-00032S)
December 24, 2014
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Alameda
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RPW and Adjacent Wetlands
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Kiewit Infrastructure West Company Maintenance Dredging
(2014-00429N)
December 04, 2014
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Solano
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TNW
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1363 Embarcadero, Oakland Boat Ramp
(2014-00337S)
October 16, 2014
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Alameda
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TNW
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Honu Group Residence - 149 Jamaica Street
(2014-00264)
July 15, 2014
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Marin
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TNW
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Benicia Urban Waterfront Enhancement Project
(2013-00384)
July 15, 2014
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Solano
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TNW and adjacent wetlands
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Chabot Dam Seismic Upgrade Project
(2013-00297)
July 7, 2014
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Alameda
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TNW, RPW and abutting wetlands
non-RPW
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2254 Marsh Road
(2013-00430)
July 2, 2014
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Sonoma
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RPW and abutting wetlands
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24165 Turkey Road
(2014-00101)
May 22, 2014
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Sonoma
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RPW and abutting wetlands
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2045 Lawndale Road Culvert Replacement
(2011-00388)
April 1, 2014
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Sonoma
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RPW
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Albany Beach Restoration
(2011-00388)
March 12, 2014
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Contra Costa
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TNW
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C&H Sugar Refinery Dock Maintenance Repairs Project
(2013-00381)
January 28, 2014
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Contra Costa
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TNW
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Waterfront East Pipeline Maintenance Project
(2012-00075)
July 2, 2013
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Contra Costa
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RPW and wetlands adj to TNW
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Culvert Removal in Trinidad
(2012-00166)
January 9, 2013
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Humboldt
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RPW
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Oak Grove Property (Kottinger Hills)
(1992-19699)
January 16, 2013
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Alameda
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RPW and non-RPW
non-RPW and Adjacent Wetlands
RPW and non-RPW
RPW, non-RPW and Adjacent Wetlands
non-RPW and Adjacent Wetlands
non-RPW
RPW and non-RPW
RPW and non-RPW
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Pescadero Corp Yard Fire Restoration
(2012-00137)
January 29, 2013
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San Mateo
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Impoundment of Jurisdictional Waters |
Podva Property
(2012-00076)
January 31, 2013
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Contra Costa
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non-RPW and Adjacent Wetlands
RPW
RPW, non-RPW and Adjacent Wetlands
RPW, non-RPW and Adjacent Wetlands
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New England Lobster Company Water Diversion, El Portal Canal
(2013-00047)
February 4, 2013
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San Mateo
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RPW |
Sky Ranch II - Pittsburg
(29268)
March 6, 2013
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Contra Costa
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Wetlands Abutting a RPW |
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Faria Ranch
(2005-296780S)
November 09, 2012
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Contra Costa
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RPW, Wetlands directly abutting a RPW, Wetlands adjacent to a RPW
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Noyo Harbor District Maintenance Dredging
(2009-00026N)
June 26, 2009
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Mendocino
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TNW
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For more information about the Regulatory Administrative Appeal Program,
please see the Corps' South Pacific Division web site.
Summary of Appeals
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Applicant's Name and Location
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Corps File
Number |
Action
Appealed |
Date
Received |
Final Appeal
Decision Date |
Final Appeal Decision |
District
Follow-up
Action |
Mr. Michael Halperin
Hollister, CA
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2011-00146S
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Jurisdictional Determination
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November 29, 2013
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pending
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pending
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pending
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Half Moon Bay Development/Pullman Ditch
Half Moon Bay, CA
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2010-00191S
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Jurisdictional Determination
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December 15, 2011
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January 30, 2012
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Withdrawn - New Information Received
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Referred to District for reverification
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Grand View Terrace
Half Moon Bay, CA
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2007-400560S
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Jurisdictional Determination
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August 14, 2008
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October 21, 2009
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Remanded to District for further consideration
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Remand response letter reconfirming Corps jurisdiction on site signed April 19, 2010
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Port of Oakland
Oakland, CA
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276930S
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Jurisdictional Determination
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July 10, 2008
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June 2, 2009
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Remanded to District for further consideration
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Remand response letter reconfirming Corps jurisdiction on site signed April 16, 2010
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Union Pacific Railroad
Napa, CA
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265570N
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Jurisdictional Determination
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June 26, 2009
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July 2, 2009
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Remanded to District for further consideration
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Remand response reconfirming Corps jd signed May 14, 2010
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Alameda County Juvenile Hall
Dublin, CA
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268430S
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Jurisdictional Determination
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May 27, 2003
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June 13, 2003
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Not Accepted. Appellant provided insufficient basis for request for appeal
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No further action required.
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Gentry Property
Fairfield/Suisun, CA
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266130N
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Jurisdictional Determination
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May 2, 2003
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NA
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Withdrawn by Appellant.
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No further action required.
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Industry West (Davenport property)
Santa Rosa, CA
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206510N
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Jurisdictional Determination
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December 30, 2002
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April 29, 2003
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No Merit.
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No further action required.
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Baccarat Fremont Developers
Fremont, CA
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232050S
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Jurisdictional Determination
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July 9, 2001
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October 25, 2001
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Remanded back to the District for further consideration.
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District Engineer reconfirmed wetlands jurisdiction on the subject property.
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Murray Dam Committee
Cazadero, CA
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234930N
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Permit Denial
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February 3, 2000
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May 2, 2000
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Remanded back to the District for further consideration.
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Section 7 consultation in progress.
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