Seyfarth Synopsis: The U.S. Army Corps of Engineers (USACE) has just issued a Regulatory Guidance Letter which provides to property owners (including developers) the right of appeal USACE Approved Jurisdictional Determinations.

On November 1, the U.S. Army Corps of Engineers (USACE) issued a Regulatory Guidance Letter (No. 16-01, October 2016) (RGL) which provides to property owners (including developers) the right of appeal of USACE Approved Jurisdictional Determinations (AJDs).

Jurisdictional determinations are used by USACE to confirm formal determinations by the USACE of the applicability of the Clean Water Act or Rivers and Harbors Act to tracts of land, i.e., whether property contains wetlands or other water features. While jurisdictional determinations are discretionary, the USACE commonly issues jurisdictional determinations regarding the presence of wetlands when requested by owners.  In the new RGL, USACE has acknowledged that AJDs can have significant impacts on the use or development of property, and that such decisions can be appealed.

Both AJDs and Preliminary Jurisdictional Determinations (PJD) are common tools used by USACE to inform property owners about USACE decisions as to the presence of wetlands, streams, intermittent streams or other water courses on property, however, historically USACE has taken the position that its final AJDs were non-reviewable once issued. Because AJDs were until now not subject to appeal, property owners obtaining “unfavorable” USACE determinations of wetlands on their property were left with no reasonable alternatives for challenging such USACE determinations.

Owners could proceed to develop a property notwithstanding the determination, and await an enforcement action with potential criminal and civil penalties, or owners could proceed with the lengthy and costly permit process, and thereafter challenge the permit decision requiring a permit for development of or to a wetland.

As a result of the Supreme Court ruling earlier this year (U.S. Army Corps of Engineers v. Hawks Co., 136 St. 1807 (May 2016)) affirming AJDs are “final agency action” and thus immediately subject to appeal, USACE issued the RGL acknowledging the Supreme Court ruling that AJDs (but not PJDs) are reviewable.  The October 2016 RGL specifically supersedes all previous Regulatory Guidance Letters issued by USACE with respect to the reviewability of AJD determinations by USACE.

The new Regulatory Guidance Letter includes newly-developed USACE forms that may be used (but are not mandatory) in requests for AJDs and PJDs.