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Jurisdiction: Wetlands, Streams and Waters Regulated by the Corps

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8 September 2023-Supreme Court Ruling in Sackett v. EPA-update

 

29 Aug 2023 - To Conform with Recent Supreme Court Decision, EPA and Army Amend "Waters of the United States" Rule

 26 May 2023 - Supreme Court Ruling in Sackett v. Environmental Protection Agency
 12 May 2023 - Definition of "Waters of the United States": Rule Status and Litigation Update
 United States Environmental Protection Agency (EPA) Waters of the United States Information
 21 April 2023 - Definition of "Waters of the United States": Rule Status and Litigation Update
 2023 WOTUS Rule AJD Form and User Manual  
 2023  Final Revised Definition of Waters of the United States (WOTUS) Army Corps of Engineers Headquarters Jurisdictional Information
 January 18, 2023 Revised Definition of ‘‘Waters of the United States, EPA/Office of the Assistant Secretary of the Army (Civil Works) Public Webinar.
 30 December 2022 - EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections

On December 30 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule establishing a durable definition of “waters of the United States” (WOTUS) to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity. The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.

 Jurisdiction - what is it?

The procedure of identifying and locating jurisdictional waters of the US regulated by the Corps under Section 404 of the Clean Water Act and Section 10 of the Rivers & Harbors Act of 1899 is commonly referred to as the “JD process”, a “wetland determination” or a “delineation”.   This survey procedure establishes a line that identifies and separates the Corps regulated areas from non-regulated areas. Regulated (i.e., jurisdictional) areas can include wetlands, stream channels, rivers, lakes, ponds and coastal and offshore waters.  The JD process is essential when investigating, planning, designing, or submitting an application for a permit from the Corps to determine if the proposed work will occur in wetlands or waters of the US.

In general, these determinations are good for five years from the date the Corps notifies you in writing that you have accurately delineated the jurisdictional features on your property. The method for performing a Jurisdictional Determination (JD) employs a multi-parameter approach as defined in the U.S. Army Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1) and subsequent regional supplements. Basically this approach requires positive verification of the presence of hydrophytic vegetation, hydric soils, and wetland hydrology for an area to be determined a ‘wetland’.

See the web pages in our regulatory library for national and state wetland indicators, including vegetation, soil and hydrology, for information and tools that can help wetland delineators make jurisdictional determinations.

 Work in Navigable Waters and Section 10 of the Rivers and Harbors Act

Section 10 of the Rivers and Harbors Act of 1899 requires authorization from the US Army Corps of Engineers (Corps Section 10 permit or exemption) for the construction of any structure in or over any navigable water of the United States, the excavation/dredging or deposition of material in these waters, or any obstruction or alteration in a "navigable water". Structure or work outside the limits defined for navigable waters of the U.S. require a Section 10 permit if the structure or work affects the course, location, condition, or capacity of the water body.

Although each Corps District maintains a list of "Section 10" navigable waters of the US, absence from the list should not be taken as an indication that the water is not navigable or jurisdictional under Section 10 (as per 33 CFR §329.16).

Section 10 Waters

In 2023, the Wilmington District completed the consolidation of various historical resources documenting Section 10 Waters, including: The Section 10 Waters list from the Wilmington District compiled in 1965 from multiple navigability studies conducted prior to that time;  Lists containing reaches of waters in western North Carolina previously designated as Section 10 by the Corps prior to the late 1980s when that region of the state was regulated by Corps Districts other than the Wilmington District (i.e. Nashville, Huntington and Savannah);  The Wilmington District’s 1940 Navigable Waters list; Numerous congressional documents; Navigability reports; and Wilmington District jurisdictional determinations and Section 10 permit documents.  The list also includes waters that are part of a federally approved/authorized navigation project.  The District makes no claim that the list is complete.

This list is for reference purposes only.  It is not a substitute for a formal determination of navigability or jurisdictional determination (JD).  It is imperative that you contact the appropriate Regulatory Project Manager for a final determination as to whether or not a particular project falls within or outside of Section 10 authority.

Current Section 10 List for the Wilmington District List 

Historic (circa 1965) Section 10 Wilmington District Waters (NC)

Addendum (circa late 1980s) Additional Section 10 Waters for Western NC (from Asheville Field Office)

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