The U.S. Army Corps of Engineers – Norfolk District (Norfolk Corps) issued a Public Notice regarding the jurisdictional determination (JD) and confirmation process for delineations of aquatic resources. The May 25 PN clarifies that the Norfolk Corps process has necessarily changed over time, and they can no longer respond to all “stand alone” requests for JDs (those not accompanied by a permit application). The Norfolk Corps intends to shift their focus to more efficient permit application evaluations and related consultation with state and federal permit partners.
These guidelines were announced coincidentally on the same day the Supreme Court handed down the Sackett v. Environmental Protection Agency decision, which narrows the definition of Waters of the U.S. Our analysis of that issue is provided in this Field Notes article.
The Norfolk Corps PN breaks down the process based on the authorization for impacts that applicants seek:
WSSI has been following the evolving WOTUS and Jurisdictional Determination issues over the last several years. The announcement of May 25 was a long-awaited follow up to October 2022 pronouncements from the Corps and Virginia’s Department of Environmental Quality.
While we understand that the Corps has limited resources, this shift away from providing review of wetland delineations prior to the permit process will ultimately leave the regulated public with greater uncertainty leading into the permit process. Now more than ever, it is critical to hire a consultant that has a full understanding of wetland delineations, the limits of federal and state jurisdiction, and the resulting implications so as not to enter the permitting process blind and without the benefit of an approved JD clearly describing the limits of federal jurisdiction on a project.