A Jurisdictional Determination, also known as a “JD”, represents a US Army Corps of Engineers’ determination of the presence and/or extent of “waters of the US” on any given property. However, there are two types of JDs. One represents the official findings of the Corps, and the other is more or less an estimate. Both JDs have their purposes. It is important to recognize the difference between the two types because one could get you into a lot of trouble.
Approved JDs
An approved JD (AJD) is an official Corps determination that jurisdictional “waters of the United States,” “navigable waters of the United States,” or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters and determined to be jurisdictional under the Clean Water Act and/or the Rivers and Harbors Act.
An approved JD:
- Constitutes the Corps’ official, written representation that the JD’s findings are correct;
- Can be relied upon by a landowner, permit applicant, or other “affected party” (as defined at 33 C.F.R. 331.2) who receives an AJD for five years (subject to certain limited exceptions explained in RGL 05-02);
- Can be used and relied on by the recipient of the AJD (absent extraordinary circumstances, such as an approved JD based on incorrect data provided by a landowner or consultant) if a CWA citizen’s lawsuit is brought in the Federal Courts against the landowner or other “affected party,” challenging the legitimacy of that JD or it’s determinations;
- Can be immediately appealed through the Corps’ administrative appeal process set out at 33 CFR Part 33
If wetlands or other water bodies are present on a site, an AJD for that site will identify and delineate those water bodies and wetlands that are subject to Clean Water Act jurisdiction, and serve as an initial step in the permitting process.
Preliminary JDs
Preliminary JDs (PJD) are non-binding; “… written indications that there may be waters of the United States, including wetlands, on a parcel or indications of the approximate location(s) of waters of the United States or wetlands on a parcel. Preliminary JDs are advisory in nature and may not be appealed.”
The main purpose of a Preliminary JD is speed a project along. There are several scenarios where this type of JD would accomplish this:
- An applicant, or other “affected party”, may elect to use a preliminary JD to voluntarily waive or set aside questions regarding CWA jurisdiction over a particular site. Usually in the interest of allowing the landowner or other “affected party” to move ahead expeditiously to obtain a Corps permit authorization where the “party” determines that is in their best interest to do so.
- For purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S.
- Preliminary JDs are also commonly used in enforcement situations if a site may be impracticable, unauthorized, or for reasons that prevent an approved JD to be completed in a timely manner. In such circumstances, a preliminary JD may serve as the basis for Corps compliance orders (e.g., cease and desist letters, initial corrective measures). The Corps should support an enforcement action with an approved JD, unless it is impracticable to do so under the circumstances.
Which Should You Use?
It is the Corps’ goal to process both preliminary JDs and approved JDs within 60 days. The applicant or other affected party’s choice of whether to use a preliminary JD or approved JD should not affect this goal.
As the “waters of the U.S” definition is currently in a state of limbo, all future permits and JDs issued will be reviewed under the pre-2015 regulatory regime. Previously approved permits or JDs under the 2020 Navigable Waters Protection Rule are subject to review.
To learn more about the current guidance for wetland permits and JDs, please refer to U.S. EPA’s page on the current implementation of “waters of the U.S.”: https://www.epa.gov/wotus/current-implementation-waters-united-states