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The United States Army Corps of Engineers (“Corps”) and United States Environmental Protection Agency (“EPA”) issued on April 25th document titled:

Coordination Process Update: Joint Coordination Memoranda to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (CORPS) and the U.S. Environmental Protection Agency (EPA) (“Memorandum”).

The Memorandum provides an update on the coordination process between EPA and the Corps in issuing Jurisdictional Determinations.

The Memorandum was necessitated by the United States Supreme Court decision in Sackett v. EPA.

Sackett addressed the scope of the Clean Water Act’s definition of Waters of the United States (“WOTUS”). The majority Opinion significantly narrowed the scope of what constitutes a WOTUS for purposes of the Clean Water Act. Further, because of Sackett, EPA and the Corps issued a final rule on August 29, 2023, that revised the Clean Water Act definition of WOTUS to conform to the decision.

The April 25th Memorandum referenced both the Sackett decision and the 2023 final rule. However, it also notes that the 2023 rule is not currently operative in certain states and for certain parties due to litigation.

As a result, the memorandum states that where the 2023 rule is not operative, the pre-2015 regulatory regime is in effect. The pre-2015 regulatory regime refers to the Corps and EPA’s pre-2015 definition of WOTUS.

The Memorandum also discusses:

• Definition of a Jurisdiction Determination (i.e., a document provided by the Corps stating the presence or absence of WOTUS on a parcel or written statement and a map identifying the limits of WOTUS on a parcel)
• Prior joint coordination memorandum between the Corps and EPA coordinating on Clean Water Act geographic jurisdictional matters
• Outlines Corps and EPA procedures when Jurisdictional Determinations are elevated to headquarters under the 2023 final rule/pre-2015 WOTUS regime
• Addresses categories of waters that require coordination
• Notes resolution of 73 of the elevated draft approved Jurisdictional Determinations as of April 23, 2024

A copy of the Memorandum can be downloaded here.