Army Corps Changes Course: CWA Jurisdictional Determinations May Require A New Look

• Published date: 02 February 2022
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Renewables, Water
• Law Firm: Foley & Lardner
• Author: Ms Sarah Slack, Dorothy E. Watson, Amanda K. Beggs and Nicholas R. Johnson

In a move that could have wide-ranging implications for developers of real estate, including renewable energy projects, throughout the United States, the U.S. Army Corps of Engineers (the "Corps") recently announced that it was broadening its definition of "waters of the United States" under the Clean Water Act, consistent with the Biden Administration's policy positions and recent court litigation. One notable result of this announcement is that project developers who obtained a Corps Jurisdictional Determination ("JD") prior to the change in policy may no longer be able to rely on it for permitting or development purposes.

The Clean Water Act (the "CWA") prohibits the discharge of pollutants into "navigable waters," which the CWA defines broadly as "waters of the United States" ("WOTUS"). The Corps has jurisdiction under the CWA to issue permits for the discharge of dredged or fill materials into WOTUS, including wetlands adjacent to WOTUS. By regulation, the Corps has established a formal procedure to obtain the Corps' official position on whether a property contains WOTUS that are subject to the Corps' jurisdiction. The Corps issues its decisions by way of both Preliminary Jurisdictional Determinations ("PJDs"), which are only advisory and not binding upon the agency, and Approved Jurisdictional Determinations ("AJDs"), which are final and can be relied upon for permitting purposes. The Corps also issues "stand-alone" AJDs, which are not obtained in conjunction with a permitting action. Stand-alone AJDs are routinely obtained to provide comfort for project developers (and their lenders or other financing parties) in assuring that jurisdictional WOTUS on a project site are accurately mapped, and that proposed development can avoid undevelopable areas.

JDs are particularly useful in confirming the scope of the Corps' jurisdiction over features on a project site that may not be obviously WOTUS - for example, wetlands, water-retaining ditches, desert washes, or ephemeral streams that flow only intermittently. The scope of the Corps' jurisdiction over which such features are WOTUS, however, has consistently been a moving target. Prior to 2015, the definition of WOTUS was governed principally by the U.S. Supreme Court decision Rapanos v. United States, 547 U.S. 715 (2006), a decision which produced competing tests authored by Justice Scalia (in a plurality opinion) and Justice Kennedy (in a concurrence). In 2015, the Obama Administration expansively...