- Apr 16, 2023
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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:
The policy direction provided by each memo is summarized as follows:
- 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.
- 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.
- Location
- United States