On January 5, 2022, the U.S. Army Corps of Engineers (“USACE”) quietly released an announcement stating that it will not rely on approved jurisdictional determinations (“AJDs”) issued under the now-vacated Navigable Waters Protection Rule (“NWPR”). This represents a significant change on how the USACE treats AJDs and could significantly impact pending permit applications which relied on AJDs issued under the previous rule.
By way of background, the USACE has the authority under section 404 of the Clean Water Act (“CWA”) to regulate discharges of fill material into “waters of the United States” (“WOTUS”). This normally entails regulation of activities affecting wetlands and activities in navigable waters such as dredging. The CWA does not define WOTUS and, for nearly five decades since the CWA was enacted, the Environmental Protection Agency (“EPA”) and the USACE have jointly attempted to develop a definition of WOTUS with only modest success in the face of highly contentious litigation, ambiguous Supreme Court decisions, and shifting political priorities. The most recent WOTUS definition was implemented via the NWPR in April of 2020, but this rule was set aside on August 30, 2021 by the U.S. District Court for the District of Arizona in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. As a result, EPA and the USACE have since reverted to the pre-2015 WOTUS definition while concurrently developing a new rule.
During the period between issuance of the NWPR in 2020 and when it was set aside by the Court in 2021, the USACE issued numerous AJDs. An AJD is a determination provided by the USACE stating that WOTUS exist in a proposed development area, and often provide a map identifying the limits of regulated waters on a parcel. Historically, an AJD was valid for five years and could be relied on by a property owner or project proponent even if there was a subsequent regulatory change in that five-year window.
In an abrupt shift, the USACE announced via a discreet media release that it will not rely on an AJD issued under the NWPR in making a new permit decision. This change will impact pending permitting actions as permit applicants will face a difficult choice of having to obtain a new jurisdictional determination, rely on an AJD issued prior to the NWPR, or proceed with the permit application with no determination at all and face an uncertain permitting outcome. Any of these options introduces uncertainty as it could expand the scope of regulated waters on a parcel, can significantly delay issuance of the permit, and ultimately increase project costs.