On October 18, 2022, the Virginia Department of Environmental Quality (DEQ) published an article acknowledging the “substantial delays” to be expected from stand-alone Jurisdictional Determination (JD) requests (i.e., those JD requests that are not concurrently tied to a wetland permit request).
U.S. Army Corps of Engineers – Norfolk District (Corps) staff have indicated that they are prioritizing the review of wetland permit requests over stand-alone JD requests. When a Joint Permit Application (JPA) is submitted, the Corps Project Manager (PM) will determine if a field visit is necessary to confirm the boundary of Corps-regulated Waters of the United States (WOTUS) and if needed will “promptly” schedule a field visit. However, there are two potential issues with this:
- While the intent of the COE may be to “promptly” schedule a site visit after submission of a concurrent JPA and JD request, as a matter of practice, we have found that it often takes 2 to 4 months after the initial request that a site visit or delineation review occurs. Complicating the process further is the fact that the JPA is not considered complete for federal processing until a valid JD (or preliminary screening form) from the Corps is issued.
- In DEQ’s article, they noted that the Corps confirmation of the delineation may be specific to those waters associated with the proposed impact, not the entire delineated study boundary. With this approach, subsequent site plan modifications that would require a change in impacts will also necessitate a new JD and potential site visit to confirm the delineated boundaries. Additionally, because the delineation is confirmed after impacts are anticipated and surveyed, the applicants are making planning decisions ahead of Corps concurrence that the WOTUS have been mapped correctly. Changes to the delineation during the permitting process can then lead to costly delays including remobilization of survey work and, more significantly, changes to permit types and mitigation requirements which could cause the applicant to restart the permitting process and incur increased costs.
I’m Applying for a Wetland Impact Permit in Virginia. What Can I Do?
We encourage all applicants to reinforce their planning process by working with a trusted consultant, utilizing DEQ’s State Surface Water Determination (SSWD) process, and potentially utilizing the COE’s Preliminary Screening Form (PSF) process for general permits and the pre-application meeting process for Individual Permits. Using the PSF, when applicable, and holding pre-application meetings will help to expedite the COE review process.
Our past Field Notes articles on the SSWD (November 2020) and the PSF (March 2022) provide more details on those options.
DEQ can issue a SSWD independent of the Corps’ JD process. Additionally, in some cases where a limited delineation confirmation from the Corps is provided, the Commonwealth of Virginia will continue to use the SSWD process to holistically review the site. To ensure applicants can rely on correctly mapped wetlands and other surface waters, DEQ encourages submitting a SSWD request early in the process, and before a JPA is submitted for review.
Permitting aside, the Corps slowdown in JD issuance can also affect local and municipal approvals such as Resource Protection Area Determinations and grading permit issuance. We encourage you to discuss these items with locality staff to determine a path forward if slowed issuance (or non-issuance) of such approvals will result in delays to your project.
What’s Happening in Maryland?
In Maryland, the Baltimore District of the Corps recommends against applicants applying for JDs, and instead recommends submitting permit applications and having the wetland delineations confirmed as part of the permit review process. If that is not feasible (i.e., the applicant is in a feasibility study to determine whether or not to purchase the property and/or a site plan has not been developed), then the Corps recommends applying for a Preliminary JD (PJD). Recently, the time frame for obtaining a PJD has been 3 to 6 months. If an Approved JD (AJD) is requested, the Corps warns that it may take up to 1 year to receive an AJD. Regardless, the Corps has been scheduling field meetings to review wetland delineations within 3 to 4 weeks of receiving a JD application to at least provide an initial verbal determination.
WSSI Can Help
To develop a strategy for confirming jurisdictional areas on your proposed project site, or for other questions, please contact the WSSI staff noted below or talk with your WSSI project manager.