Corps/EPA AJD policy memos

[Eric]

This isn't making any headlines, but if you or your clients are potentially affected by Corps jurisdictional changes following Sackett, you'll want to take note of two Approved Jurisdictional Determination (AJD) policy memos that Department of Army and EPA issued last week. These memos essentially set policy for interpreting jurisdictional questions under the 2023 amended rule that have arisen in the field but, until now, weren't specifically addressed in Sackett or the regulations. The guidance memos can be found on the Corps Headquarters website at this link (click "EPA-Army Joint Policy Memos" drop-down on right side of the page).

The policy direction provided by each memo is summarized as follows:

1. AJD No. MVS-2023-00288: Affirms implementation guidance from the January 2023 rule preamble stating that jurisdictional determinations for tributaries must account for flow characteristics of the entire reach of tributary that is of the same Strahler stream order. If the portion of a tributary in an AJD review area is relatively permanent, but most of the reach is non-relatively permanent, then the portion of tributary under review should be determined to be non-relatively permanent/non-jurisdictional consistent with the reach as a whole.
2. AJD No. LRB-2021-01386: Before determining if a wetland has a continuous surface connection with a traditionally navigable water or relatively permanent water (and therefore meets the amended rule's jurisdictional standard), you must be sure you've carefully evaluated and documented the wetland's complete geographic extent. Per the Technical Support Document for the Final “Revised Definition of ‘Waters of the United States'", a wetland may be delineated as part of a larger wetland area "if a human-made levee or similar artificial structure divides it, but a hydrologic connection is maintained between the divided wetlands." The bottom line is that a wetland may not appear to have a continuous surface connection to a TNW/RPW but if the wetland can be shown to share a hydrologic connection with other jurisdictional wetlands (even if only a shallow subsurface connection or indicators of a shallow subsurface connection), then that wetland could be considered jurisdictional as part of the larger wetland area.

 

[Kathy Kinsland]

Eric; Very good info. Thank you for passing on. I have yet to see a legal definition of "relatively permanent" beyond "To meet the relatively permanent standard, the waterbodies must be relatively permanent, standing, or continuously flowing waters connected to paragraph (a)(1) waters or waters with a continuous surface connection to such relatively permanent waters or to paragraph (a)(1) waters." I've heard some regulatory folks in the Western states hint that they consider "relatively permanent" to apply to ephemeral or intermittent tributaries because they flow on a "relatively basis" year after year. I don't think that is correct, but I can't seem to get a straight answer for Western streams, the majority of which are ephemeral or intermittent. Thoughts?

 

[Eric]

Hi Kathy,

You are correct that the 2023 amended rule didn't exactly go above and beyond with its definition of "relatively permanent waters" (RPWs). The Biden administration appears to have avoided a full, jurisdiction-limiting interpretation of Sackett and has instead deferred to Corps/EPA staff to flesh out the meaning of the term. I can understand how this approach wasn't super helpful for applicants and consultants trying to attain a clear understanding of the implications of Sackett for their projects.

Here are three resources that should be useful for you:

• Slides 24-26 of EPA/Corps' WOTUS training presentation (made publicly available on EPA's WOTUS page). These slides clarify that RPWs do not include tributaries that flow "for only a short duration in direct response to precipitation." This clarification tells us that non-jurisdictional, non-RPWs are essentially equivalent to excluded "ephemeral features" as they were defined under the 2020 Navigable Waters Protection Rule (i.e., both rely/relied on the "only flow in direct response to precipitation" language).
• EPA/Corps' Beta Streamflow Duration Assessment Method for the Arid West (SDAM) and associated field forms (made available on EPA's SDAM page). If you're requesting a non-RPW determination for a drainage in the arid west you may be asked to evaluate the drainage using the SDAM procedure, including providing completed SDAM forms. If, using the SDAM, you determine that the drainage classifies as "ephemeral" (again, you'll probably need to assess the whole reach per AJD policy memo MVS-2023-00288), then that should be sufficient to document the feature as a non-jurisdictional, non-RPW for purposes of an AJD.
• The 2023 Rule AJD Form. You can find completed copies of this on the open internet (e.g., this one) or using the Corps' Permit Finder website. The form doesn't provide any new information but I think seeing it can be helpful for understanding how jurisdiction gets documented. Note that non-RPW determinations are documented in section III.C.

Hope some of this helps! Bottom line is that streams documented to have an ephemeral flow regime should be considered to be non-jurisdictional, non-RPWs. Intermittent streams - i.e., those flowing more than "in direct response to precipitation" where the water table intersects the streambed for some part of the year - should still be considered jurisdictional RPWs.