Special Public Notice
Prioritization of Permit Application Review
The purpose of this public notice is to provide clarity for stakeholders of the Regulatory Program of the U.S. Army Corps of Engineers, Tulsa District regarding the prioritization of permit applications and jurisdictional determinations. With this public notice, the Tulsa District is emphasizing the review of Department of the Army (DA) permit applications and requests associated with pending DA permit applications and de-emphasizing services that are not directly associated with a submitted permit application.
Under Section 404 of the Clean Water Act, the Corps regulates the discharge of dredged or fill materials into waters of the United States (WOTUS), including adjacent wetlands. Under Section 10 of the Rivers and Harbors Act of 1899, the Corps regulates work or structures in or near navigable WOTUS. Within these authorities, the mission of the Corps Regulatory Program is to protect the nation's aquatic resources, while allowing reasonable development through fair, flexible, and balanced permit decisions.
Nationally, the Regulatory Program has been challenged to deliver services to the regulated public and stakeholders with greater efficiency. The aspiration of the Regulatory Program is to achieve a common level of service across the nation. Common level of service speaks to the services provided as well as the timeliness of those services. Consequently, the Tulsa District must clarify expectations regarding the services and level of responsiveness we will be able to provide to the public.
Permit Application Prioritization
The current administration has issued a large number of Executive Orders (E.O.) and Presidential Memorandums. A few of them intersect the Regulatory Program directly and prioritize certain types of actions requiring permit decisions. We strive to provide timely service to all stakeholders of the Regulatory Program; however, projects that align with the direction of these E.O.s will be prioritized within the authorities of the Regulatory Program. The text of all Presidential E.O.s and memorandums can be found at: https://www.whitehouse.gov/presidential-actions/
Jurisdictional Determinations (JD)
There are four types of JDs: Approved JD, Preliminary JD, Delineation Concurrence, and No JD. JDs identify waters and wetlands (aquatic resources) that are subject to the jurisdiction of the above authorities and those that are not. Only an Approved JD is conclusive regarding the geographic limits of jurisdictional aquatic resources and non-jurisdictional aquatic resources. For more information on the distinctions between these JDs, refer to Regulatory Guidance Letter 16-01, October 2016
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The Tulsa District will focus on providing the appropriate JD type in response to requests subject to the authorities identified above. It is not the Corps mandate to provide JD services as pre-requisites for other state or local government requirements that do not connect to the authorities of the Regulatory Program or for speculative proposals that are not funded or feasible. Furthermore, the Corps has discretion on when a resource-intensive Approved JD process would be appropriate. Approved JDs are not pre-requisites within the Regulatory Program for the submission of a proposed project under a DA permit application. Approved JDs are also not essential for facility planning and design efforts to avoid and minimize impacts to WOTUS.
There are many private-sector environmental consultants that operate within the geographic area of the Tulsa District Regulatory Program
. Environmental consultants who properly apply the 1987 Corps of Engineers Wetland Delineation Manual and the appropriate regional supplement
are generally equipped to provide accurate and expeditious delineations to their clients. For example, over the past 10 years, the Corps has provided numerous Approved JDs on large tracts of land (in excess of 500 acres) associated to prospective developments. However, only a few of these proposals culminated in the submission of a DA application. The investment of resources in these Approved JDs has hindered Tulsa District’s ability to efficiently review and process DA permit applications and under the priorities set by the current administration, is not sustainable. The services provided by these private sector consultants are often sufficient to identify the presence/absence, location and extent of potential WOTUS. Their products can be useful in the planning and design phase of project development. The Tulsa District strongly encourages project proponents to leverage these services in response to independent requirements of state and local governments, financiers and in the early configuration and site considerations for proposed facilities that may eventually require a DA permit.
The Tulsa District Regulatory Program continues to welcome pre-application consultation early in proposal design stages with the purpose of identifying opportunities to configure proposed facilities to avoid or reduce impacts to potential WOTUS or resources protected under other federal laws. An Approved JD is not essential for these discussions. Stand-alone JD requests (those that are not associated with a permit application) will be responded to with a Preliminary JD or, where the requestor has provided an environmental consultant prepared delineation, a delineation concurrence will be provided.
Pre-approved wetland delineations and/or JDs are not a pre-requisite for submitting a DA permit application. When submitting a DA permit application, a delineation that accurately reflects the geographic limits of aquatic resources should be included. A delineation of aquatic resources should consist of a drawing or map showing the location and geographic extent of aquatic resources located in the proposal area. The extent of each aquatic resource within the proposal area must be identified and quantified (i.e., acreage and /or linear feet). Delineations of aquatic resources should include supporting documentation, but do not have to be pre-approved by the Corps. Submitting a delineation of aquatic resources with a permit application is the most effective manner to expedite proposal review.
Approved JDs
The Corps will generally provide Approved JDs only in response to requests that are accompanied by all of the following: 1) a DA permit application which identifies specific proposed activities within aquatic resources, 2) a delineation, according to applicable regulations and guidance, that determines the presence and extent of aquatic resources on the proposed site, and 3) demonstration of a reasonable effort in planning and design to avoid and minimize physical impacts to the identified aquatic resources, reducing the extent of the need for DA authorization. When the accompanying preliminary delineation of aquatic resources has been prepared by an environmental consultant properly applying the Corps standards, it can help expedite the Corps review. Once the set of potential aquatic resource impact sites has thus been narrowed, the Corps can provide an Approved JD that will conclusively determine which of the proposed impacts to aquatic resources are impacts to jurisdictional waters and thus require a DA permit and which are not jurisdictional. The recipient of a Preliminary JD (PJD) or a Delineation Concurrence can later request and obtain an Approved JD if that becomes necessary or appropriate during the permit process to address questions of jurisdiction. An approved JD is valid for 5 years, sufficient for permitting, and has the option for appeal.
Transition Plan for Pending Approved JD Requests
The prioritization posture described in this public notice is effective immediately. Stand-alone requests for Approved JD’s that are pending with the Tulsa District as of this date will be managed as follows:
(1) All pending stand-alone AJD requests will be reviewed to identify projects with compelling circumstances. These requests may be prioritized for completion as AJDs at the District's discretion.
(2) For all other pending stand-alone requests, a Corps Project Manager will contact the requestor to discuss available options. These options include:
a. Converting the request to a PJD or a Delineation Concurrence, which can be completed more expeditiously.
b. Submitting a DA permit application, which would allow the Corps to process the request as an AJD.
c. Withdrawing the request if a JD is no longer needed.
Timeline: The Tulsa District will make every effort to contact all affected requestors within 90 days of this notice to determine the appropriate path forward for their request.
Requests for stand-alone AJDs received after the date of this notice will be managed according to the prioritization outlined in this notice.