One of the most controversial points of the Environmental Protection Agency's rules to define "waters of the United States" in federal law has been how far the rules will extend the agency's jurisdiction. On Wednesday the Army Corps of Engineers "unveiled guidance to help regulators in the field decide whether wetlands and streams on property being developed fall under the jurisdiction of the federal government," Tiffany Stecker reports for Greenwire.
"The regulatory guidance letter offers Army Corps districts guidance on when to issue different types of jurisdictional determinations, which establish whether the corps has jurisdiction over wetlands and streams on a tract of land based on whether they are connected to waters downstream," Stecker writes. "The determinations serve as a basis for whether a landowner or developer must obtain permits under the Clean Water Act or the Rivers and Harbors Act."
"The letter was issued in an effort to provide clarity on when it is appropriate for a district regulator to complete a 'preliminary' determination, an 'approved' determination or no determination at all," Stecker writes. "The unanimous decision in Army Corps of Engineers v. Hawkes Co. Inc. in May found that approved jurisdictional determinations [AJDs] were 'final agency actions' and thus subject to court challenges. ... Preliminary jurisdictional determinations are only advisory, while approved determinations are legally binding."
The letter says that if the Corps is able to access a tract of land and "is otherwise able to complete an AJD," it will issue one when formally requested.
"The regulatory guidance letter offers Army Corps districts guidance on when to issue different types of jurisdictional determinations, which establish whether the corps has jurisdiction over wetlands and streams on a tract of land based on whether they are connected to waters downstream," Stecker writes. "The determinations serve as a basis for whether a landowner or developer must obtain permits under the Clean Water Act or the Rivers and Harbors Act."
"The letter was issued in an effort to provide clarity on when it is appropriate for a district regulator to complete a 'preliminary' determination, an 'approved' determination or no determination at all," Stecker writes. "The unanimous decision in Army Corps of Engineers v. Hawkes Co. Inc. in May found that approved jurisdictional determinations [AJDs] were 'final agency actions' and thus subject to court challenges. ... Preliminary jurisdictional determinations are only advisory, while approved determinations are legally binding."
The letter says that if the Corps is able to access a tract of land and "is otherwise able to complete an AJD," it will issue one when formally requested.
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