On January 28, 2008, the U.S. Army Corps of Engineers modified the procedures for coordinating review of jurisdictional delineations involving significant nexus determinations with the EPA. Significant nexus determinations are required under the Corps and EPA’s joint Rapanos Guidance to determine whether the following aquatic features are jurisdictional under Section 404 of the Clean Water Act: non-navigable tributaries that are not relatively permanent; wetlands adjacent to non-navigable tributaries that are not relatively permanent; and wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.
Under the revised procedures, Corps districts are required to e-mail draft delineations involving significant nexus determinations to EPA regional offices. The EPA has 15 days to decide if a delineation involves a "special case" which would, under the 1989 Memorandum of Agreement between the two agencies, require the EPA to make the final determination of the scope of jurisdiction. There is no more elevation to HQ for significant nexus determinations. Under the revised guidance, Corps districts are directed to finalize delineations if the EPA fails to respond within the 15-day period.
The revised procedures replace the temporary process described in the agencies’ joint memorandum that accompanied the Rapanos Guidance on June 5, 2007. The revised procedures do not apply to jurisdictional delineations involving isolated waters, which are subject to the 21-day review period described in the agencies’ joint memorandum of June 5, 2007.
For more information please contact Keith Garner. Keith Garner, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.