Q. What is a jurisdictional determination?
A. A jurisdictional determination (JD) is the procedure of identifying and locating jurisdictional waters of the US regulated by the Corps under Section 404 of the Clean Water Act and Section 10 of the Rivers & Harbors Act of 1899 is commonly referred to as the “JD process”, a “wetland determination” or “delineation”. This survey procedure establishes a line that identifies and separates the Corps regulated areas from non-regulated areas. Regulated (i.e., jurisdictional) areas can include wetlands, stream channels, rivers, lakes, ponds and coastal and offshore waters. The JD process is essential when investigating, planning, designing, or submitting an application for a permit from the Corps to determine if the proposed work will occur in wetlands or waters of the US.
Q. What is a water of the U.S.?
A. The definition of waters of the U.S. can be found within our regulations, at 33 CFR 328.3(a). This definition includes the definition of navigable waters, which is also found within the Corps’ regulations at 33 CFR 329.4:
From 33 CFR 328.3
a. The term “waters of the United States” means
1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. (Note: these are navigable waters subject to Section 10 of the Rivers and Harbors Act of 1899. For a list of navigable waters within the Sacramento District, click here ).
2. All interstate waters including interstate wetlands
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
iii. Which are used or could be used for industrial purpose by industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United States under the definition;
5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;
6. The territorial seas; (Note: these are navigable waters subject to Section 10 of the Rivers and Harbors Act of 1899).
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.
8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.
Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
In some cases, the delineated aquatic features may not have a hydrologic connection or significant nexus to navigable waters of the U.S. In these cases, the Corps must determine that the aquatic features are either isolated, intrastate waters with no interstate or foreign commerce connection or they are features not currently subject to Corps jurisdiction. Once you have received written verification from the Corps that the waters are not currently regulated, you may proceed with the proposed discharge of dredged and/or fill material. However, these waters may be subject to additional Federal, state or local laws. Therefore, prior to conducting work in these waters, you should contact other applicable wildlife and resource agencies.
Q. How do I know if I have waters of the U.S. on my property?
A. In order to determine if there are waters of the U.S. on a property, a wetland delineation must be conducted. The wetland delineation should show all wetlands and other aquatic features on the site, including streams, rivers lakes, oceans, lakes, ponds, etc. The Corps can conduct wetland delineations. However, due to limited staff and resources, the response time for the Corps to conduct a wetland delineation can be several months or longer. In order to expedite the process, we encourage you to use a consultant to conduct a preliminary wetland delineation, especially for large and/or complex areas. A list of wetland consultants can be found here . The list of consultants is arranged in alphabetical order and is provided purely as a convenience for members of the public. The Government makes no warranties, representations, or guarantees about the qualifications, experience, or competence of any individual or company whose name appears on the list. The Government assumes no liability for any damages suffered by anyone doing business with a person or company named on this list.
A preliminary wetland delineation conducted by a consultant should then be submitted to the Corps for review and verification. All preliminary wetland delineations submitted must meet the Sacramento District’s Minimum Standards for Acceptance of Preliminary Wetland Delineations .
Following receipt of the preliminary wetland delineation, the Corps will issue an approved or a preliminary jurisdictional determination.
Q. What is the difference between an approved JD and a preliminary JD?
A. An approved jurisdictional determination (JD) is an official Corps determination that jurisdictional “waters of the U.S.” or “navigable waters of the U.S.,” or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the Rivers and Harbors Act and the Clean Water Act.
A preliminary JD is a “…written indication that there may be waters of the United States, including wetlands, on a parcel or indications of the approximately location(s) of waters of the United States or wetlands on a parcel.” Preliminary JDs are non-binding and advisory in nature, and cannot be appealed. (See 33 CFR 331.2).
In most cases, a preliminary JD is the most efficient type of JD for a given study area. In these cases, the Corps reviews the preliminary wetland delineation prepared by the applicant or their consultant, and, if we concur with the location and acreage of aquatic features identified, will prepare a one page JD form, make an assumption that all of the aquatic features within the study area are “waters of the U.S.” (i.e. are not isolated), and will send the applicant a written letter with our determination. A preliminary JD is generally used when the applicant voluntarily waives or sets aside questions regarding Corps jurisdiction over a site, which is generally in the interest of allowing the applicant to move ahead expeditiously to obtain a Corps permit authorization where the party determines that it is in his or her best interest. Although a preliminary JD is not appealable, the applicant can request an approved JD at any time.
An approved JD is appealable and would be used if the applicant requests an approved JD, if the applicant contests jurisdiction over a particular water body or wetland, and where the Corps is allowed access to the property and is able to produce an approved JD; or when the Corps determines that jurisdiction does not exist over a particular waterbody or wetland. If the site contains isolated waters not under the Corps jurisdiction, this determination can only be made in an approved JD.
Q. Should I request an approved JD or a preliminary JD?
A. The most suitable type of JD to be used for a given survey area depends on the site. Generally, if you do not specifically request an approved JD, the Corps will complete a preliminary JD.
If all parties agree that the aquatic features likely contain a hydrologic connection or significant nexus to a water of the U.S., and are therefore subject to the Corps jurisdiction, then a preliminary JD would most likely be the appropriate type of JD. In this case, the process is more efficient, and it allows us to proceed with the permitting process for any activities impacting waters of the U.S. on the site.
You may request that we conduct an approved JD at any time. However, an approved JD is most commonly (only) used if the parties believe the survey area contains isolated waters. If we conclude that the study area does contain isolated waters, an approved JD would most likely be the appropriate type of JD. Draft approved JD’s must be forwarded to the U.S. Environmental Protection Agency and Corps headquarters for a 15-20 day comment period, prior to their finalization. Generally the approved JD process is more time consuming because of the significant-nexus determination for each aquatic feature and the documentation that goes along with that process. It is recommended that an applicant only request an approved JD if they have sufficient information to document that the study area contains isolated, intrastate waters with no interstate or foreign commerce connection.
Q. Should I submit information regarding the jurisdictional status of the aquatic resources on my site?
A. You are not required to submit information on whether or not the aquatic resources within the study area are jurisdictional waters of the U.S. However, if you are requesting an approved JD, any information you can provide regarding the hydrologic regime, chemical, physical, and biological characteristics of the aquatic resources would be beneficial. This information may identify the flow route of water from the aquatic resource into a navigable water of the U.S., if the aquatic resource contains habitat for wildlife or aquatic organisms, the chemical composition of the aquatic resource, etc. This information will assist us in completing a significant nexus determination for the approved JD in a timely manner.
Q. How do I conduct a wetland delineation?
A. A wetland delineation must be conducted in accordance with the 1987 Wetland Delineation Manual, as well as any regional supplements, which, for the Sacramento District, includes the Arid West Regional Supplement and/or the Western Mountains, Valleys and Coast Regional Supplement.
During a wetland delineation, you will be examining the hydrology, vegetation and soils within a particular study area. Under normal circumstances, if an area displays wetland hydrology, hydrophytic vegetation and hydric soils, that area would be considered a wetland. In addition, you will also survey the site to determine if other waters of the U.S. are present (e.g. lakes, rivers, oceans, streams, ponds, etc.). Other waters of the U.S. can be delineated by locating their Ordinary High Water Mark (OHWM), defined in 33 CFR Part 328.3 as the line on the shore established by fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation, or the presence of litter and debris.
After the survey is complete, all aquatic features, including wetlands and other waters, should be identified on a map and described in a wetland delineation report, which meets the Sacramento Districts Minimum Standards for Acceptance of Preliminary Wetland Delineations , and submitted to the appropriate district office.
Q. How do I know if an area contains wetland hydrology?
A. Identification of wetland hydrology within the Arid West region can be difficult, particularly during the summer, when the majority of aquatic resources do not contain water. In cases where there is not a direct observation of surface water or saturated soils, you must examine the area for primary or secondary indicators. The presence of one primary indicator is sufficient to conclude that wetland hydrology exists. The presence of two or more secondary indicators is sufficient to conclude that wetland hydrology exists. Examples of primary and secondary indicators include but are not limited to: surface soil cracks, inundation available on aerial photography, water stained leaves, water marks, sediment deposits, drainage patterns, hydrogen sulfide odor, oxidized rhizospheres along living roots, and shallow aquitard. For a complete list of primary and secondary hydrology indicators, review the 1987 Wetland Delineation Manual, and the Arid West Regional Supplement and/or the Western Mountains, Valleys and Coast Regional Supplement.
Q. How do I know if an area contains hydrophytic vegetation?
A. For all wetland delineations conducted after June 1, 2012, identification of hydrophytic vegetation must be conducted utilizing the 2012 National Wetland Plant List (NWPL). Generally, if the majority of plant species within the study area have an indicator status of OBL, FACW or FAC, the area contains hydrophytic vegetation. The identification of hydrophytic vegetation must be conducted as described in the 1987 Wetland Delineation Manual, and the Arid West Regional Supplement and/or the Western Mountains, Valleys and Coast Regional Supplement.
Q. How do I know if an area contains hydric soils?
A. Indicators of hydric soils varies depending on the location of the proposed project area and the types of soils that occur within the study area. Some examples of hydric soil indicators include, but are not limited to: histosols, histic epipedon, hydrogen sulfide odor, stratified layers, sandy gleyed matrix, sandy redox, loamy mucky mineral, depleted matrix, and red parent material. For a complete description of hydric soil indicators, review the 1987 Wetland Delineation Manual, and the Arid West Regional Supplement and/or the Western Mountains, Valleys and Coast Regional Supplement.