SAVANNAH DISTRICT

 

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Jurisdictional Determinations

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 the 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 of 1899 and Section 404 of the Clean Water 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.



The Corps has two approaches to complete a jurisdictional determination (JD) for the purpose of establishing jurisdiction pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) and Section 404 of the Clean Water Act (33 USC 1344). The two types of JDs are Preliminary and Approved JDs.

A Preliminary JD can only be used to determine that wetlands or other waterbodies on a site “may be” waters of the United States. This type of JD is used for initial planning purposes.

The most complex type of JD is the Approved JD. An approved JD is an official determination that there are, or are not waters of the United States on a site or that a specific wetland or waterbody is not jurisdictional.

Savannah District will now accept GPS delineations, provided the following minimum requirements are met, and the GPS Delineation Form is completed and submitted with the GPS delineation. GPS requirements include:

  • An experienced wetland delineator is present during data acquisition.
  • The GPS device is capable of sub-meter accuracy.
  • GPS data has post-processing differential correction using closest continually operated reference station.
  • Percent Dilution of Position (PDOP) of 6 percent or less is met.
  • One or more property corners and/or monuments is located by the GPS and compared to the known location as a measure of accuracy.
  • Waypoints are taken at an appropriate frequency to show an accurate footprint of the wetland area.
  • The wetland drawing is accompanied by a brief description of the GPS equipment used and which Geographic Coordinate System is used.

 

Court Cases Concerning Jurisdiction

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On December 1, 2008, the U.S. Supreme Court denied the government's petition for a writ of certiorari for United States v. McWane. Inc., et al. By default, Corps and USEPA now recognize the 11th Circuit decision that the Kennedy standard is the sole method of determining CWA jurisdiction in that circuit. The State of Georgia is located within the 11th Circuit, and consequently, the Savannah District now requires completion of a significant nexus test for all approved JDs. A significant a nexus test is an analysis of the flow characteristics and functions of the water and the functions performed by all wetlands adjacent to the water to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters and includes consideration of hydrologic and ecologic factors.

 

Contact Information

Phone: 912-652-5050

Email: cesas-rd@usace.army.mil