Vol. 30, No. 1 ● January 13, 2022
About, Face! Army Corps Reverses Stance on AJD Validity
In a little-known announcement on January 5, 2022 regarding the vacatur of the Navigable Waters Protection Rule (NWPR), the U.S. Army Corps of Engineers stated that they “will not rely on an AJD [approved jurisdictional determination] issued under the NWPR in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the pre-2015 regulatory regime).” This decision puts at peril any standalone AJDs that were issued under the NWPR that would have been relied upon to proceed with a future permit action, particularly those that had hoped to escape federal Section 106 or endangered and threatened species review.
This abrupt about-face comes after the Corps had (following the vacatur ruling) stated that it would honor AJDs issued under the NWPR for future permit actions, until those AJDs expired (five years from the date of issuance). Historically, the Corps had honored AJDs issued prior to changes to WOTUS rules, both as a result of court cases and new rule definitions. However, after discussions between WSSI staff and various Corps representatives at multiple Corps Districts and Headquarters, we have confirmed that AJDs issued under the NWPR cannot be relied upon for permit actions.
It is curious that this information was provided only as an “announcement” and not as guidance, public notice, or other more formal means of communication from the Corps. WSSI is closely following this issue, understanding that it affects a number of our clients that had planned to rely on AJDs issued under the NWPR for permit actions. AJDs issued under the NWPR would have been issued between June 22, 2020 and August 30, 2021. Please contact Ben Rosner, Bob Kerr, Rebecca Napier, or Mike Klebasko if you require any additional information.