The identification and location of jurisdictional Waters of the United States (which includes wetlands) regulated by the U.S. Army Corps of Engineers (USACE) under Section 404 of the Clean Water Act of 1977, is physically determined through a process known as a jurisdictional determination (JD). The method of performing a wetland JD employs a multi-parameter approach defined in Technical Report Y-87-1, Corps of Engineers Wetlands Delineation Manual, dated January 1987, and supplemental guidance. It generally requires positive evidence of hydrophytic vegetation, hydric soils, and wetlands hydrology for a determination that an area is a wetland.
The JD process establishes a line that separates and identifies the USACE-regulated wetland areas and waters from non-wetland (upland) areas that are not regulated by the USACE. The JD provides important information to a landowner or investor for planning purposes or carrying out certain activities on a given parcel of land. It is essential in making an application for a permit from the USACE to determine if work would occur in wetlands or navigable waters of the United States.
In order for USACE to confirm a JD, typically a consultant is hired to delineate waters of the United States on a site. Upon receipt of a request to perform a jurisdictional determination, the following procedures would be followed:
- A review to determine if the request has sufficient information to perform a jurisdictional determination. If not, a letter requesting additional information will be sent. Once sufficient information is received, a site visit (if needed) will be scheduled.
- During the site visit, Corps personnel will review the delineation for accuracy. If any changes are necessary they will be pointed out to the applicant/consultant so that they can be surveyed and added onto a revised delineation drawing for Corps review/approval.
- Once the final delineation is received and reviewed, a final letter of jurisdiction will be sent. A checklist of required information for submitting a request for jurisdictional determination can be found by clicking here.
Recent jurisdictional determinations (JDs) made by the New York District, Army Corps of Engineers
Click here for guidance issued by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency, regarding Clean Water Act (CWA) jurisdictional determinations following the U.S. Supreme Court's decision in the consolidated cases:
Rapanos v. United States and Carabell v. United States ("Rapanos").
To contact the New York District Regulatory Branch, click here.