Jurisdictional Waters, Wetland Delineation, & Compensatory Mitigation

Abstract

The U.S. Army Corps of Engineers (Corps) regulates the discharge of dredged or fill material within waters of the United States under Section 404 of the Clean Water Act (CWA). In accordance with the implementing regulations of the CWA, a Department of the Army permit is required for most activities that involve a discharge into WOTUS. As such, the Corps is responsible for evaluating permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands. During the permit application review process, the Corps considers the views of other federal, state and local agencies, interest groups, and the general public.

The CWA regulatory programs address “navigable waters,” defined in the statute as “waters of the United States (WOTUS), including the territorial seas.” However, the CWA does not define WOTUS, as Congress left further clarification to the Environmental Protection Agency (EPA) and the Department of the Army. As such, these agencies have defined WOTUS by regulation since the 1970s. The most recent rulemaking defining WOTUS was in 2020 and resulted in implementation of the Navigable Waters Protection Rule (NWPR) in accordance with Executive Order (E.O.) 13778: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, which was signed by the former President in 2017.

In accordance with the U.S. District Court for the District of Arizona order vacating and remanding the NWPR in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency on August 30, 2021—and the subsequent order from the U.S. District Court for the District of New Mexico on September 27, 2021 that also vacated the NWPR in the case of Navajo Nation vs. Michael Regan, et. al.—the Corps and EPA are currently interpreting WOTUS consistent with the 1986 regulations as amended in 1993 and as implemented through the guidance developed following U.S. Supreme Court decisions from Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006). Under the current definition, the Rio Grande and its tributaries are WOTUS and, therefore, regulated under the CWA.

This presentation will provide an overview of the Corps’ Regulatory Program, including the current definition of WOTUS, types of permits, general requirements under the Mitigation Rule at 33 CFR 332, and jurisdictional wetlands and the delineation process. However, and per the information received in conjunction with the request to provide this presentation and questions received in advance, it will be primarily focused on the latter topic.