Volume 24, Number 11 ● November 16, 2016
Corps Provides Jurisdictional Determination Guidance
On October 31, 2016, the U.S. Army Corps of Engineers issued Regulatory Guidance Letter (RGL) 16-01 to clarify the differences between an Approved Jurisdictional Determination (AJD) and a Preliminary Jurisdictional Determination (PJD), and when each one should be issued (or no JD should be issued at all). The RGL was provided in response to The Supreme Court’s May 31, 2016 decision in the case of U.S. Army Corps of Engineers vs. Hawkes, in which landowners who wanted to mine peat from wetlands disagreed with an AJD. The Court held that an AJD is a final agency action that represents the Corps’ final decision and is subject to judicial review, and that an AJD has direct legal consequences.
An Approved JD (AJD) is a definitive, official determination that there are jurisdictional aquatic resources on a parcel and only an AJD can confirm the geographic limits of those resources. Conversely, with a Preliminary JD the Corps does not make a legally binding determination of any type regarding whether jurisdiction exists over the particular resource in question. An AJD is a final action in which the Corps has determined which features on a site are jurisdictional, therefore the delineation may be relied upon for land use decisions. That is why we recommend always requesting an AJD – although sometimes we must accept a PJD due to individual Corps staff work levels.