Integration of the Sackett Decision in All States

[cpaschke]

Hello-I am asking if there is any indication of when the Sackett Decision will be fully integrated in all of the states. Our company mostly works in Ohio and the Jurisdictional Determinations are essentially being made "case by case" using the pre-2015 rules as informed by Sackett. Any thoughts would be appreciated.

-Cindy P.

 

[aquafire]

I'm not a professional, but my understanding was that it was up to the states, rather than the agency or federal government, to decide. I guess that means waiting for your state legislatures to make a law, or for someone to challenge a case and have it work its way through the courts up to the state supreme court.

 

[Eric]

Ohio is operating under the pre-2015 regulatory regime + Sackett because of an order issued by the U.S District Court for District of North Dakota on April 12, 2023 that enjoined the 2023 Rule in 24 states, including Ohio. You should expect to transition over to the Amended 2023 Rule as soon as that litigation resolves.

For reference, the Sixth Circuit similarly issued a stay order for the 2023 Rule on April 20, 2023, which applied to Kentucky and plaintiffs-appellants of that case. That litigation resolved on September 23, 2024 when the Sixth Circuit lifted its stay and Kentucky began operating under the Amended 2023 Rule.

The Kentucky stay order lasted 522 days and in Ohio the 2023 Rule has now been enjoined 615 days. Based on this crude timeline comparison (no one can predict exactly when courts will finalize their decisions), I'd say that the District of North Dakota litigation should resolve and you should start operating under the Amended 2023 Rule any day now.

 

[RavenGirl56]

Hello-I am asking if there is any indication of when the Sackett Decision will be fully integrated in all of the states. Our company mostly works in Ohio and the Jurisdictional Determinations are essentially being made "case by case" using the pre-2015 rules as informed by Sackett. Any thoughts would be appreciated.

-Cindy P.

Hello! I am in Idaho, so I am sure there are some differences to what we're seeing, but I'll speak from my experiences. Idaho has incorporated the rule, and we have experienced extensive delays on Approved Jurisdictional Determinations. The feedback is that permits take precedence and there is currently no time frame for AJDs. We have had a Preliminary JD go through, but no AJDs have been approved since the new ruling.

I've talked quite a bit with some of my regional representatives and they have all reiterated that they are back logged trying to learn how to apply the new regulations and complete new trainings. A lot of coordination for AJDs is going beyond regional EPA headquarters for review and is being analyzed by the EPAs national headquarters - based on my conversations, this is not typical of past submissions.

 

[Eric]

Idaho has incorporated the rule, and we have experienced extensive delays on Approved Jurisdictional Determinations. The feedback is that permits take precedence and there is currently no time frame for AJDs. We have had a Preliminary JD go through, but no AJDs have been approved since the new ruling.

About a year ago, the Corps changed the way it calculates budget allocations for individual districts. That calculation no longer factors in AJDs and is now based more purely on permit actions. There's no incentive for districts to prioritize AJDs because that effort won't be accounted for in budget allocation decisions.

I've talked quite a bit with some of my regional representatives and they have all reiterated that they are back logged trying to learn how to apply the new regulations and complete new trainings.

Interesting to hear. That's not at all an issue in southern California, and I don't think it's generally an issue throughout the Corps.

A lot of coordination for AJDs is going beyond regional EPA headquarters for review and is being analyzed by the EPAs national headquarters - based on my conversations, this is not typical of past submissions.

I agree there's probably been an uptick. Per the post-Sackett coordination procedures, national AJD reviews may result in memos issued by Corps/EPA that are used to essentially set policy for interpreting jurisdiction nationwide - i.e., the "Memoranda to the Field" listed at the bottom of EPA's AJD coordination page.

 

[RavenGirl56]

That makes a lot of sense. I wasn't surprised by more HQ involvement post-Sackett, but I was surprised that JDs have pretty much been swept aside without an associated permit. Do you know what the reasoning was for the adjusted budget to not have JD allocations?

 

[Eric]

Do you know what the reasoning was for the adjusted budget to not have JD allocations?

AJD are generally optional, and some districts were processing a lot of them when really they didn't need to. Sometimes the property owner just wants the information because it affects their property value and how they can develop in the future. I think in other cases consultants tell their clients they'll need an AJD, when really they don't, and the Corps just goes along with it without trying to explain that an AJD really isn't necessary. When associated with a permit action, regulators should generally just do a delineation-only verification and then process the permit. Even for excluded features, like ephemeral drainages/non-RPWs, we don't actually need to provide an AJD. The feature is excluded and the applicant can document that all on their own.

The budget calculation change makes a lot of sense. Districts shouldn't be rewarded for work that's not necessary and essentially amounts to a waste of taxpayer dollars.

 

[RavenGirl56]

I get the reasoning behind that. Over the past year, I’ve had three meetings with my boss and local regulators to discuss the differences between an AJD and a PJD, but none of them explained it as clearly as this. For a lot of the projects my company works on, we need an approved wetland boundary recorded on final plats to meet county requirements.

From what’s been explained in those consultations, an AJD documents what’s jurisdictional and what’s not. However, it’s harder to appeal, takes more time, and is only valid for six years. I usually recommend a PJD, but after our meetings with local reps, my boss prefers requesting an AJD.

It seems like JDs, in general, aren’t prioritized unless there’s an associated permit. Still, whether a permit is involved or not, approved boundaries are often required for developments like subdivisions. Playing devil’s advocate here—wouldn’t it be a property owner’s right as a taxpayer to request and receive a JD within a reasonable time frame?

 

[cpaschke]

AJD are generally optional, and some districts were processing a lot of them when really they didn't need to. Sometimes the property owner just wants the information because it affects their property value and how they can develop in the future. I think in other cases consultants tell their clients they'll need an AJD, when really they don't, and the Corps just goes along with it without trying to explain that an AJD really isn't necessary. When associated with a permit action, regulators should generally just do a delineation-only verification and then process the permit. Even for excluded features, like ephemeral drainages/non-RPWs, we don't actually need to provide an AJD. The feature is excluded and the applicant can document that all on their own.

The budget calculation change makes a lot of sense. Districts shouldn't be rewarded for work that's not necessary and essentially amounts to a waste of taxpayer dollars.

The issue in Ohio is that to the application for the General Isolated Wetland Permits in Ohio require a Jurisdictional determination letter from the Corps to be deemed administratively complete. Is anyone familiar with other documentation the Corps District could provide to designate the wetland or stream as non-jurisdictional?

 

[Eric]

Still, whether a permit is involved or not, approved boundaries are often required for developments like subdivisions. Playing devil’s advocate here—wouldn’t it be a property owner’s right as a taxpayer to request and receive a JD within a reasonable time frame?

Yes, absolutely, it's the Corps' practice to always honor JD requests unless impractical to do so.

You might want to take a look at RGL 16-01 and RGL 16-01 Q&As, which explain the differences between AJDs, PJDs, and "No JD Whatsoever" situations. Per the RGL, regulators should be having conversations with applicants to make sure they're fully aware of their JD options to help ensure the most appropriate JD type (if any) is requested. Before RGL 16-01, our office was doing lots of PJDs, basically routinely, but that all stopped after the RGL. RGL 16-01 basically told regulators to really think about whether an AJD or PJD is necessary and even steer the applicant toward not even doing one ("No JD Whatsoever") if possible.

After RGL 16-01 everyone started doing more "delineation-only verifications," where a staff member reviews the delineation and provides their concurrence, usually via email. Delineation-only verifications fit under the "No JD Whatsoever" category and, as a practical matter, can/should be used instead of AJDs/PJDs in most situations.

Regarding PJDs, I really don't even understand the point of them. I'd say delineation-only verifications should be substituted for PJDs 100% of the time.

I think AJDs are primarily used nowadays when official documentation of jurisdiction has been requested by another agency—like the situation you described where it sounds like the county wanted to see one. Sometimes people just want an official determination provided on agency letterhead, even though it's not strictly necessary. We often still provide AJDs to document excluded non-RPWs, but I generally try to steer these requestors toward a simple email concurrence instead.

 

[Eric]

The issue in Ohio is that to the application for the General Isolated Wetland Permits in Ohio require a Jurisdictional determination letter from the Corps to be deemed administratively complete. Is anyone familiar with other documentation the Corps District could provide to designate the wetland or stream as non-jurisdictional?

Kind of like @RavenGirl56, sounds like you have a situation where a non-Corps entity—in your case, the State of Ohio (Ohio EPA)—is the one wanting to see an AJD, not the Corps.

That's too bad because it sounds like you're talking about clearly non-jurisdictional features here, i.e., the "isolated wetlands" these state permits are for. If you have documentation clearly showing that the wetlands don't fit the "adjacent" definition (i.e., no continuous surface connection with an RPW/TNW) maybe you could get email concurrence on that interpretation from the Corps, and then share that with the State EPA staff processing the isolated wetland permit applications? I'd suggest contacting State EPA staff to check. Whatever works for the Corps for resolving Corps jurisdictional issues should work for the state.

 

[RavenGirl56]

Thank you for the materials. I’ve actually read them in the past but reviewed them again to see if I interpreted anything in a new light. I didn't find anything that steered my understanding away from needing a JD of some form.

An AJD seems more relevant than ever following the recent court ruling, as it could determine whether an impact needs to be permitted at all. That said, I can understand that an AJD requires an extensive amount of work and may be over requested by developers or home owners trying to avoid permitting an mitigation when they clearly have an aquatic resource or by those who simply don't understand that an AJD is not necessary for their project.

In many projects I’ve worked on, a JD is typically seen as the first step. Establishing a wetland boundary early allows for informed development planning—helping clients decide if permitting or mitigation is necessary and how the design can be adjusted to avoid wetlands. Without Corps concurrence, however, such planning involves a level of uncertainty.

I’m unfamiliar with “delineation-only verification” and would like to learn more about your experiences with it. While it sounds like a useful tool for development planning, my employers generally regard a JD as the only appropriate method of boundary acceptance. Perhaps this could be an option moving forward if it's advocated for and meets all of the requirements for a particular project.

 

[Eric]

Thank you for the materials. I’ve actually read them in the past but reviewed them again to see if I interpreted anything in a new light. I didn't find anything that steered my understanding away from needing a JD of some form.

Understood . I suggest checking out the JD educational materials for the Corps' Regulatory Request System (i.e., our new electronic submittal system launched earlier this year). See the RRS jurisdiction page at: https://rrs.usace.army.mil/rrs/home/jurisdiction

Read through the Q&As on that page and you should see how the Corps is prioritizing delineation-only reviews ahead of JD options.

In particular, check out the Q&A for: "Can the USACE provide written assurance regarding the location of regulated waters on my project site?"

Here's the answer they provide (emphasis mine):

A jurisdictional determination is not required to apply for or obtain a permit. The USACE evaluates jurisdiction as part of our review of a permit application. If you have a question regarding the jurisdictional status or geographic boundary of an aquatic resource on your project site, please specify what questions you have in a cover letter that is attached to your permit application and the USACE will evaluate and address those questions as part of our review of the submittal.

Bottom line: Written assurance is provided as part of the permit application review process and generally doesn't/shouldn't involve a JD.

In many projects I’ve worked on, a JD is typically seen as the first step. Establishing a wetland boundary early allows for informed development planning—helping clients decide if permitting or mitigation is necessary and how the design can be adjusted to avoid wetlands. Without Corps concurrence, however, such planning involves a level of uncertainty.

Agreed. Except you definitely shouldn't need a JD to establish jurisdictional boundaries early or obtain Corps concurrence. Note that one of the RRS submittal options is "Submit an Aquatic Resource Delineation Report and Aquatic Resource Inventory." This option was included in the RRS to steer applicants toward delineation-only verifications instead of JDs. Delineation review/approval is all that should be needed for most permit applications.

While it sounds like a useful tool for development planning, my employers generally regard a JD as the only appropriate method of boundary acceptance. Perhaps this could be an option moving forward if it's advocated for and meets all of the requirements for a particular project.

As mentioned, you're completely within your rights to request a JD. An AJD does, after all, provide five years of legal assurance regarding a resource's jurisdictional/non-jurisdictional status, which could be especially useful for large/complex/controversial projects where you're afraid of WOTUS definitions changing prior to completion of the permit process (but even that's not 100% assured).

In any case, from what I've shared above, it should hopefully at least be clear that JDs are not the "only appropriate method of boundary acceptance" .

Hope that helps. I'm also happy to hash this out via DM or phone if you like...sometimes simply chatting can be the best way to work through all the little questions/nuances.

 

[RavenGirl56]

Understood . I suggest checking out the JD educational materials for the Corps' Regulatory Request System (i.e., our new electronic submittal system launched earlier this year). See the RRS jurisdiction page at: https://rrs.usace.army.mil/rrs/home/jurisdiction

Read through the Q&As on that page and you should see how the Corps is prioritizing delineation-only reviews ahead of JD options.

In particular, check out the Q&A for: "Can the USACE provide written assurance regarding the location of regulated waters on my project site?"

Here's the answer they provide (emphasis mine):


Bottom line: Written assurance is provided as part of the permit application review process and generally doesn't/shouldn't involve a JD.



Agreed. Except you definitely shouldn't need a JD to establish jurisdictional boundaries early or obtain Corps concurrence. Note that one of the RRS submittal options is "Submit an Aquatic Resource Delineation Report and Aquatic Resource Inventory." This option was included in the RRS to steer applicants toward delineation-only verifications instead of JDs. Delineation review/approval is all that should be needed for most permit applications.



As mentioned, you're completely within your rights to request a JD. An AJD does, after all, provide five years of legal assurance regarding a resource's jurisdictional/non-jurisdictional status, which could be especially useful for large/complex/controversial projects where you're afraid of WOTUS definitions changing prior to completion of the permit process (but even that's not 100% assured).

In any case, from what I've shared above, it should hopefully at least be clear that JDs are not the "only appropriate method of boundary acceptance" .

Hope that helps. I'm also happy to hash this out via DM or phone if you like...sometimes simply chatting can be the best way to work through all the little questions/nuances.

This does help. I'm going to read through the RRS jurisdiction and may reach out via DM with more questions. Thank you for taking the time to share your experiences and these resources.