The Nickel Report

The U.S. Army Corps of Engineers (Corps) recently issued the first Regulatory Guidance Letter (RGL) of the Obama Administration.  RGLs were developed by the Corps as a means of providing written, mandatory guidance to field offices, and are normally issued as a result of evolving policy, judicial decisions, and/or changes to the Corps’ regulations that affect the Corps’ permit program.

RGL 16-01, issued on October 31, 2016, provides revised guidance to Corps districts on the issuance of jurisdictional determinations (JDs), and replaces a 2008 RGL on the same subject.  JDs are written Corps determinations that a wetland and/or waterbody on a particular parcel is subject to jurisdiction under Section 404 of the Clean Water Act (“CWA”) or Section 10 of the Rivers and Harbors Act (RHA).  33 C.F.R. § 331.2.

RGL 16-01 was adopted in response to the U.S. Supreme Court’s unanimous holding in U.S. Army Corps of Engineers v. Hawkes, confirming landowners’ rights to immediate judicial review of approved jurisdictional determinations (AJDs).  U.S. Army Corps of Engr’s v. Hawkes Co., 136 S. Ct. 1807 (2016).  Prior to Hawkes, the government claimed that JDs were not subject to court review.  And, in part, exacerbated by the lack of meaningful judicial review, the government’s assertions of CWA jurisdiction expanded over time.  The Hawkes decision, however, provides project proponents and landowners with the opportunity to challenge questionable agency assertions of jurisdiction, and will help clarify the proper limits of the Corps’ regulatory jurisdiction.  The Supreme Court, in fact, recognized the ambiguous reach of the Corps’ assertions of CWA jurisdiction.  Justice Kennedy observed that the “ominous” reach and “systemic consequences of the [CWA] remain a cause for concern,” and the lack of predictability “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” Id. at 1817 (Kennedy, J., concurring).

RGL 16-01 begins with a nod to the Hawkes decision, noting that AJDs and preliminary jurisdictional determinations (PJDs) are provided by the Corps “as a public service.”  It notes that, in finding AJDs subject to judicial review, “several members of the Court highlighted that the availability of AJDs is important for fostering predictability for landowners.”  One purpose of the RGL, however, appears to be to reduce the number of AJDs that will be issued and thus subject to judicial review post-Hawkes.

RGL 16-01 makes some significant changes to the procedures Corps districts will use when evaluating JD requests, which are summarized below.  In addition, the Corps updated the forms parties must submit when requesting a JD.

• Early Consultation. RGL 16-01 adds an initial step prior to requesting a JD. The parties and Corps districts are first to engage in discussions to “ensure that all parties have a common understanding of the different options for addressing CWA and RHA geographic jurisdiction” in order to identify the most appropriate type of JD for addressing the parties’ needs.
• Decision by Applicant to Request an AJD. After a requester is fully informed of the options available, the Corps will provide an AJD to an applicant that has requested the AJD if the party continues to request an AJD. This language indicates that the Corps may attempt to persuade an applicant, during early consultation, to request a PJD (which is not reviewable in court) in lieu of an AJD (which is reviewable post Hawkes). In this way, the RGL provides guidance that could limit the number of AJDs likely to be issued.
• Prioritization of Review. RGL 16-01 recognizes the discretion of district engineers to determine how to prioritize review of JDs based on the district’s workload and available regulatory resources. For example, districts are instructed that it “may be reasonable” to prioritize review of JDs associated with permit applications above other types of JDs. Thus, AJD requests not associated with permit applications may take longer to process, and some parties may be discouraged from applying for AJDs due to the risk of delays.
• Processing Times for Issuance of JDs. The prior RGL on JDs specifically identified a 60-day time period for processing JDs. RGL 08-02 at 4. Although, in practice, this period was routinely exceeded, it did provide some leverage for discussions with the district on processing. RGL 16-01 removes the time frames. See Q&A #3. Instead, JDs will be completed “as promptly as practicable in light of the district’s workload….”
• Issuance of JDs for Uses Other than Corps CWA Programs. RGL 16-01 provides the districts with discretion whether to issue JDs for uses other than the CWA section 404 or RHA section 10 programs. RGL 16-01 acknowledges that some state and local governments require AJDs for water quality certifications or other purposes. However, Q&A #5 instructs the Corps to consider workload and appropriately prioritize requests for JDs for uses related to other CWA programs.
• Coordination with EPA. The Corps will continue to coordinate with the EPA and post final AJDs on Corps websites for their five year term.

It will be important to monitor how your Corps district implements the new RGL and whether any individual districts alter their approaches to providing JDs, in light of this new guidance.