01.11.2021 Are Jurisdictional Determinations Valid only for Five Years?
As part of its Clean Water Act § 404 Permit Program, the Army Corps of Engineers regulates certain activities in “waters of the United States,” a regulatory term that includes wetlands. To determine the extent of its jurisdiction, the Corps makes an official confirmation of the geographic boundaries of waters and wetlands on a given property and whether those waters and wetlands are regulated under the Clean Water Act. This confirmation is called an approved “Jurisdictional Determination” (JD).
An approved JD is a written document issued by the Corps, and one that can be relied on by the landowner to determine what areas of the property can and cannot be disturbed without obtaining a 404 permit from the Corps. It remains valid for a period of five years, unless new information warrants revision of the determination before the expiration date or a District Engineer identifies specific geographic areas that merit re-verification. Regulatory Guidance Letter (RGL) 05-02 (June 14, 2005). The five-year period was selected by the Corps because wetlands and other waters of the United States are affected over time by both natural and man-made activities, resulting in changes in jurisdictional boundaries. In addition, what is and is not “jurisdictional” under the Clean Water Act changes as regulations and guidance documents change.
What happens when the JD expires? The answer is that – with one important exception -- any development requires a new JD to determine whether the boundaries of waters and wetlands have changed. Developing the property without a new JD risks impacting regulated waters and wetlands without a permit.
The exception is when a landowner has obtained a 404 permit based on the JD. In that instance, the Corps has made clear that “Jurisdictional Delineations associated with issued permits and/or authorization are valid until the expiration date of the authorization/permit.” RGL 05-02. Thus, for example, if a developer has been issued an individual 404 permit for a term of 10 years, it is not necessary for the developer to obtain a new JD when the original JD expires. The Corps went further in a memorandum issued on December 13, 2013 by the Assistant Secretary of the Army for Civil Works. There, the Corps said, “In the event an extension is requested for a permit pursuant to 33 CFR § 325.6(d), any previously granted jurisdictional determination or delineation concurrence associated with the issued permit shall remain valid for the duration of any subsequent permit time extension and no new jurisdictional determination or delineation will be required unless the permittee fails to obtain an extension before expiration of the permit.”
Thus, permit holders can rest assured that their 404 permit will remain valid even if the JD on which it was based has expired. This also holds true if the duration of the permit is extended by the Corps. What happens if a permit holder forgets to request an extension of the permit and the permit expires? The answer is it’s time to go back to square one.
Expiration of Geographical Jurisdictional Determination of Waters of the United States, Regulatory Guidance Letter 05-02 (June 14, 2005).
Memorandum on Duration of Permits and Jurisdictional Determinations, USACE Regulatory Policy Directive (Dec. 13, 2013).