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Matt Chastain
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Thursday, December 10 2015, 09:53 PM
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Has anyone run into a situation where the USACE District places an NWP application on hold if that application contains an approved jurisdictional determination request? How is that possible when the General Conditions for PCNs specifically detail the date ranges the USACE has to make decisions? Also, factor in RGL 08-02, Paragraph 5. Any ideas on speeding this process up?
Responses (6)
  • Accepted Answer

    Friday, December 11 2015, 07:35 PM - #Permalink
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    There must be something more than what you have indicated. There is a specific list of information that constitutes a complete NWP application. If the USACE put the application on hold then they should provide to you in writing as to why. They can not stop the 45-day review clock just because they need more time to review the information. The USACE has 30 days from their receipt of the application to determine if the application is complete. They have a total of 45 days to make a decision. If they do not provide you with a valid reason as to why the application was put on hold (incomplete) then by law the verification is automatically authorized on day 46.
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  • Accepted Answer

    Friday, December 11 2015, 07:49 PM - #Permalink
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    Are you asking the USACE to conduct the delineation or was a complete JD package submitted to the USACE? If you submitted a JD package along with the NWP application then the USACE may determine the NWP application to be incomplete if the JD information is wrong or insufficient or the wetland delineation is wrong.
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  • Accepted Answer

    Friday, December 11 2015, 07:53 PM - #Permalink
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    Unfortunately there isn't. We were told "I am informing you that the PCN time clock has stopped at this time to allow us to complete the approved jurisdictional determination forms." That is an exact quote from a written communication. We followed up, indicating our disagreement with their interpretation of the request for information guidance.

    I just wanted to know if anyone else has experienced this issue.
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  • Accepted Answer

    Friday, December 11 2015, 09:54 PM - #Permalink
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    Nationwide Permits, General Condition 31 (b)(4)
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  • Accepted Answer

    Wednesday, January 27 2016, 09:07 PM - #Permalink
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    I don't know if this is still relevant, but in the Districts we usually work in, we will not submit a JD request via an Approved JD because this requires the District Field Office to send the JD package up the ladder to the national level - thus requiring a ridiculous amount of review time. They will place any subsequent permit requests on hold until the approved JD is reviewed and authorized. That is why we almost always submit a Preliminary or Expanded Preliminary JD request (non-appealable) as it keeps the JD review at the local level. Just my two cents...but I bet that is why you are being held up.
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  • Accepted Answer

    Tuesday, February 16 2016, 06:31 PM - #Permalink
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    Matt,
    You have to remember that you are dealing with a permit clerk who has been receiving guidance and directions from a bureaucratic chain of command. There is a guidance document stemming from the Ropanos decision that was forwarded to the districts telling them how they have to process a JD request. For certain waterways and wetlands that process crippled the day to day operations at the desk of that permit clerk Subsequent to the development of that arduous JD process and after complaints from permit clerks nationwide, USACE HQ developed the preliminary JD process to avoid the Approved JD process. The preliminary JD says you may have regulated waters and wetlands but it is not appealable. An approved JD requires the Corps to say it is or is not a regulated water or wetland. There may be 5 or 6 layers of bureaucracy between the permit clerk you are dealing with and the USACE HQ and every layer of that bureaucracy interprets and generates more guidance for the layers beneath it trying to avoid definitive issues that may lead to litigation. If you are dealing with a TNW and/or a wetland adjacent to a TNW, an approved JD is really not much more work than a preliminary JD but that has gotten lost in the layers. There are cases where the Corps has completed preliminary JDs for the Atlantic Ocean rather than an approved JD based upon a perception that it is easier and less controversial. The approved JD form is a 7-page form that the permit clerk has to fill out and submit for approval. However, if you are dealing with a TNW and/or wetland adjacent to a TNW, the vast majority of the form is not applicable and can be left blank. An approved JD is supposed to be posted on the Corps district web site while a preliminary JD is not and many layers of mid-level management would prefer to keep information off the website for fear of challenges. If you are dealing with a small tributary and/or a wetland adjacent to a small tributary or a wetland that is not part of a surface tributary system (i.e., isolated) the approved JD has to be forwarded and/or reviewed by many people above the permit clerk before it can be formally approved. That takes time and effort. And just so you know, there are 38 Corps of Engineers district offices and everyone has their own solution for the one problem. Unless you are involved in some sort of litigation or if you disagree that the Corps has jurisdiction you just might want to request a preliminary JD or make no JD request at all. It sounds to me that you have already accepted that the Corps has jurisdiction by virtue of your PCN submittal. If you have submitted a PCN for an NWP authorization and that PCN has a wetland boundary described in the plans with a report describing how the wetland was identified and mapped, the Corps may be operating under the premise that the PCN is not complete until they can verify the accuracy of the wetland delineation. My recommendation would be to talk to your client. If he or she just wants to conduct the proposed work as quickly as possible, capitulate and revise your submittal to request a preliminary JD. If there are other issues that require a definitive JD (approved JD) stick to your guns and find a way to get beyond the permit clerk.
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