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2023 Conforming Rule

On September 8, 2023, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule amending the 2023 definition of “waters of the United States” to conform with the recent Supreme Court decision in Sackett v. EPA. The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation. This action provides the clarity that is needed to advance these goals, while moving forward with infrastructure projects, economic opportunities, and agricultural activities.

More information about the final rule is available here: https://www.epa.gov/newsreleases/conform-recent-supreme-court-decision-epa-and-army-amend-waters-united-states-rule .

The agencies will host a public webinar on September 12, 2023 (3pm-4pm Eastern Time), September 13, 2023 (1pm-2pm Eastern Time), and September 20, 2023 (3pm-4pm Eastern Time) to provide updates on the definition of “waters of the United States.” For registration information, please visit EPA’s webpage for the amendments rule. The agencies also plan to host listening sessions this fall with co-regulators and stakeholders, focusing on identifying issues that may arise outside this limited rule to conform the definition of “waters of the United States” with the Sackett v. EPA decision.

Learn more about this action on EPA’s “waters of the United States” website.

2023 Rule- Revised Definition of Waters of the United States

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies continue to review the decision to determine next steps.

For more information, please visit Civil Works Regulatory Program and Permits (army.mil)

 

2023 Rule – Revised Definition of "Waters of the United States"

EPA WOTUS Rule webpage

2023 Implementation Memos:

 

Pre-2015 WOTUS Regulatory Regime (not currently applicable )

Regulatory Jurisdiction Overview

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The U.S. Army Corps of Engineers has permitting authority over activities affecting waters of the United States. Waters of the United States include surface waters such as navigable waters and their tributaries, all interstate waters and their tributaries, natural lakes, all wetlands adjacent to other waters, and all impoundments of these waters.

Two federal statutes mandate Corps jurisdiction over navigable waterways and adjacent wetlands. These are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Section 10 of the Rivers and Harbors Act applies to all navigable waters of the United States and Section 404 of the Clean Water Act applies to all waters including wetlands that have sufficient nexus to interstate commerce. The diagram below illustrates the lateral limit where Section 10 and Section 404 apply.

 

Limits of jurisdiction

  • Territorial Seas. The limit of jurisdiction in the territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles. (See 33 CFR 329.12)
  • Tidal (Navigable) Waters of the U.S. The landward limits of jurisdiction in tidal waters:
    Extends to the high tide line, or
    When adjacent non-tidal waters of the United States are present, the jurisdiction extends to the limits identified for Non-Tidal Waters of the U.S.
    Guidelines for establishing the upstream limit of navigation

  • Non-Tidal Waters of the United States. The limits of jurisdiction in non-tidal waters:
    In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or
    When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands.
    When the water of the United States consists only of wetlands the jurisdiction extends to the limit of the wetland.

 

Corps Regulations / Statutory Authorities

The regulatory authorities and responsibilities of the Corps of Engineers are based on the following laws:

Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the obstruction or alteration of navigable waters of the United States without a permit from the Corps of Engineers.

Section 404 of the Clean Water Act (33 U.S.C. 1344). Section 301 of this Act prohibits the discharge of dredged or fill material into waters of the United States without a Section 404 permit from the Corps of Engineers.

Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) authorizes the Corps of Engineers to issue permits for the transportation of dredged material for the purpose of dumping it into ocean waters.

Other laws may also affect the processing and evaluation of applications for Corps of Engineers permits. Among these laws are the National Environmental Policy Act, the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, the Endangered Species Act, the National Historic Preservation Act, the Federal Power Act, the Marine Mammal Protection Act, and the Wild and Scenic Rivers Act.

Wetland Delineations and Jurisdictional Determinations

The Corps of Engineers receives thousands of requests each year to perform wetland delineations for potential applicants for permits under Section 404 of the Clean Water Act. Due to limited staff and resources, response time can be several months or longer. To expedite this process, the San Francisco District encourages applicants to use consultants to conduct wetland delineations, especially for large and/or complex areas. The San Francisco District is not authorized to recommend any private consulting services and advises applicants to check references and referrals of prospective consultants before contracting services.

All delineations must be conducted in accordance with the 1987 Corps of Engineers Wetlands Delineation Manual and appropriate Regional Supplement(s).  Four Regional Supplements have been approved for use within the boundaries of the San Francisco District:

Wetland:

Ordinary High Water Mark:

Automated Wetland Determination Data Sheets

Please see the attached document for a list of requested information for verification of Corps' jurisdiction. The Aquatic Resources sheet of the Consolidated ORM Upload workbook is also requested for acceptance of delineation reports. This spreadsheet facilitates efficient and accurate data entry of the aquatic resources into the Corps' database.

The Consolidated ORM Upload workbook spreadsheet contains a validation tool to ensure accuracy of the data. To run the validation tool, first enter all data in the appropriate columns and tabs. Once you have completed entering the data and have saved the document in a .csv format, click the gold shield at the top of the workbook window. The tool has a tooltip showing "Validate Worksheets." After clicking this button, validation of data is performed and any possible errors are added to the Validation tab. This tab is opened after the process is complete to allow the user to see the output. The validation output includes the tab (data type), column, and cell for where the possible error was found and a brief explanation of the issue.

Approved jurisdictional determinations (JDs) and Preliminary JDs are tools used by the U.S. Army Corps of Engineers (Corps) to help implement Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 of the Rivers and Harbors Act of 1899 (RHA).

Regulatory Guidance Letter (RGL) 16-01 explains the differences between these two types of JDs and provides guidance on when an approved JD is required and when a landowner, permit applicant, or other “affected party” can decline to request and obtain an approved JD and elect to use a preliminary JD instead.

Map and Drawing Standards have been established for the South Pacific Division Regulatory Program for maps and drawings submitted as part of delineations and applications for U.S. Army permits and jurisdictional determinations.

National Wetland Plant List (NWPL) - The NWPL, update May 18, 2020, provides the most recent list of wetland plants by species and their wetland ratings and should be referenced on data forms used in the wetland delineation.  Changes from the 2016 list can be found here. 

Verified Jurisdictional Determinations

Appeals Data

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Appeals Data

Appeals Information

For more information about the Regulatory Administrative Appeal Program,
please see the Corps' South Pacific Division web site.

Summary of Appeals

 

Applicant's Name and Location
Corps File
Number
Action
Appealed
Date
Received
Final Appeal
Decision Date
Final Appeal Decision
District
Follow-up
Action

Mr. Michael Halperin 

Hollister, CA
2011-00146S
Jurisdictional Determination
November 29, 2013
pending
pending
pending

Half Moon Bay Development/Pullman Ditch

Half Moon Bay, CA
2010-00191S
Jurisdictional Determination
December 15, 2011
January 30, 2012
Withdrawn - New Information Received
Referred to District for reverification

Grand View Terrace

Half Moon Bay, CA
2007-400560S
Jurisdictional Determination
August 14, 2008
October 21, 2009
Remanded to District for further consideration
Remand response letter reconfirming Corps jurisdiction on site signed April 19, 2010

Port of Oakland

Oakland, CA
276930S
Jurisdictional Determination
July 10, 2008
June 2, 2009
Remanded to District for further consideration
Remand response letter reconfirming Corps jurisdiction on site signed April 16, 2010

Union Pacific Railroad

Napa, CA
265570N
Jurisdictional Determination
June 26, 2009
July 2, 2009
Remanded to District for further consideration
Remand response reconfirming Corps jd signed May 14, 2010

Alameda County Juvenile Hall

Dublin, CA
268430S
Jurisdictional Determination
May 27, 2003
June 13, 2003
Not Accepted. Appellant provided insufficient basis for request for appeal
No further action required.
Gentry Property

Fairfield/Suisun, CA
266130N
Jurisdictional Determination
May 2, 2003
NA
Withdrawn by Appellant.
No further action required.

Industry West (Davenport property)

Santa Rosa, CA
206510N
Jurisdictional Determination
December 30, 2002
April 29, 2003
No Merit.
No further action required.

Baccarat Fremont Developers

Fremont, CA
232050S
Jurisdictional Determination
July 9, 2001
October 25, 2001
Remanded back to the District for further consideration.
District Engineer reconfirmed wetlands jurisdiction on the subject property.

Murray Dam Committee

Cazadero, CA
234930N
Permit Denial
February 3, 2000
May 2, 2000
Remanded back to the District for further consideration.
Section 7 consultation in progress.


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