How to Appeal an Approved Jurisdictional Determination (AJD) issued by the Army Corps of Engineers

Wetlands are highly protected under both federal and state law.  This is because wetlands provide many critical benefits. For example, wetlands act as giant sponges, soaking up stormwater and helping with flood control. They also filter out pollutants as water flows from the land into the rivers and seas, improving water quality.  And of course, wetlands provide a habitat for many types of plant and animal life.

However, despite all of their benefits, the presence of wetlands on a property can be detrimental to the owner. To legally place any type of fill material into a wetland, a owner/developer must first obtain permits from the applicable state agency.  The owner/developer must also mitigate the loss of wetlands impacted by the construction activities, usually by purchasing wetlands credits from a mitigation bank. This permitting and mitigation process can be time-consuming and expensive, with wetlands credits currently selling for $65,000 per acre.

In addition to the state requirements, if the wetland falls under federal jurisdiction the developer must obtain a separate approval from the U.S. Army Corps of Engineers. This requirement is set forth in Section 301(a) of the federal Clean Water Act (CWA), codified in 33 U.S.C. §1311(a). In many cases it takes months or even years to obtain a federal permit from the Army Corps.

How to determine whether wetlands exist on the property

In order to know whether a federal or state permit is required, the owner/developer must first determine whether wetlands are present on the property. If wetlands are present, the owner/developer must then determine exactly where on the property those wetlands are located. The determination must be site-specific and may not be based on large area maps such as the national wetlands inventory.  

Instead, the developer must obtain a “wetlands delineation.” A wetlands delineation is a scientific analysis, usually performed by a private environmental engineering firm, which looks at three factors. These are “hydric soil,” meaning the presence of moisture in the ground; “hydrophytic vegetation,” meaning the presence of certain plant species which only grow in wetlands; and “hydrology,” which means a study of the way that water behaves on the parcel. If this study shows that wetlands are present, the location and limits of those wetlands can be marked on a map. This is the wetlands delineation.

If an area is found to contain wetlands, those wetlands always fall under the jurisdiction of the appropriate state agency. However, not all wetlands fall under federal jurisdiction. In order to be federally-regulated, a wetland must be a “Water of the United States, or “WOTUS.” 

How to determine if a wetland falls under federal jurisdiction

Whether a wetland is WOTUS, and thus subject to federal regulation, is determined by an Approved Jurisdictional Determination (AJD). An AJD is a formal document issued by the Army Corps that definitively states the presence or absence of WOTUS on a specific parcel of land. It may also include a written statement and map identifying the limits of such waters on the parcel[i]. The Army Corps uses the developer’s wetlands delineation, coupled with its own investigations of the subject property, to issue an AJD.

Whether a wetland qualifies as WOTUS has been the subject of intense debate and litigation for decades. This is because the definition of WOTUS has historically been vague and difficult to apply, especially with regards to wetlands.

Prior to 2023, federal jurisdiction over wetlands was determined by the so-called “significant nexus test.” Under that test, the Army Corps often took a very broad view of its authority, finding federal jurisdiction in places that bore no resemblance and had no direct connection to traditional navigable waterways such as rivers and oceans.

But the standard changed in May of 2023, when the U.S. Supreme Court issued its landmark decision in Sackett v. EPA[ii].  In Sackett, the landowners purchased a lot near a small lake and began backfilling the property to support the construction of a modest home. The EPA demanded that the Sacketts stop work and restore the site to its previous condition, claiming that the property contained federally-regulated wetlands[iii]. The EPA/Army Corps claimed that the wetlands on the Sacketts’ property were WOTUS under federal jurisdiction because they were:

[A]djacent to (in the sense that they are in the same neighborhood as) what it described as an ‘unnamed tributary’ on the other side of a 30-foot road. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable[iv].

The Supreme Court sided with the Sacketts and roundly rejected the government’s claim of federal jurisdiction based on connections to navigable waters via unnamed, non-navigable tributaries and roadside ditches. Specifically, the Court found that the unnamed tributary near the Sacketts’ property, “is not a water of the United States because it is not, has never been, and cannot reasonably be made a highway of interstate or foreign commerce.[v]"

In Sackett, the Supreme Court clarified that, "the CWA's use of 'waters' encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers, and lakes.[vi]” Accordingly, the Supreme Court struck down the significant nexus test, making it clear that federal jurisdiction exists only over:

[T]hose wetlands that are as a practical matter indistinguishable from waters of the United States. This requires the party asserting jurisdiction over adjacent wetlands to establish first, that the adjacent [body of water constitutes] . . . water[s] of the United States, (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine  where the ‘water’ ends and the ‘wetland’ begins[vii].

Thus, as per the Supreme Court’s decision in Sackett, the federal government has no jurisdiction over wetlands that lack a “continuous surface connection” to a traditional interstate waterway such as an ocean, river, or lake making it difficult to determine where the wetland ends and the traditional navigable waterway begins.

On March 12, 2025, the U.S. Environmental Protection Agency (EPA), in conjunction with the Army Corps, released a joint Memorandum to the Field concerning “the proper implementation of ‘continuous surface connection’” after the Sackett decision. Essentially, the Memorandum directed Army Corps district offices to follow the Supreme Court’s ruling in Sackett.

Shortly thereafter, between March 24, 2025, and June 17, 2025, the Army Corps and EPA conducted nine “listening sessions” intended to help craft a new definition of WOTUS to conform with the Supreme Court’s decision in Sackett. The new WOTUS definition is expected to be released in late 2025.

After the release of the March 12, 2025, Memorandum and the announcement of the listening sessions, the Department of Justice (DOJ) began filing motions to stay proceedings in wetlands cases which are currently being litigated in federal court. Clearly, the DOJ recognizes that the forthcoming WOTUS definition is likely to have a significant impact as to whether federal jurisdiction exists in those cases. Some active cases which have been placed in abeyance at the DOJ’s request include United States v. Chameleon, LLC[viii], in the Eastern District of Virginia, Richmond Division; United States v. Holzmacher, et al[1]., in the Eastern District of Virginia Norfolk Division[ix]; and United States v. Valentine[x] and United States v. White[xi], both in the Eastern District of North Carolina.

Appealing an Approved Jurisdictional Determination

Despite the clear guidance in Sackett and the March 12, 2025, Memorandum to the Field, and despite the fact that numerous wetlands cases currently in federal litigation have been stayed at the request of the Department of Justice while awaiting the new WOTUS definition, the Army Corps continues to issue AJDs based on attenuated connections to WOTUS via underground culverts and roadside ditches.

Many of the affected landowners and developers strongly disagree with these AJDs. Fortunately, there is an appeals process by which an AJD can be challenged. The U.S. Supreme Court, in United States Army Corps of Eng'rs v. Hawkes Co[xii]., confirmed that AJDs are final agency decisions which can be appealed to a federal district court under the Administrative Procedure Act (APA)[xiii].

But as with all APA cases, before an appellant can successfully bring suit in federal court, s/he must first exhaust all administrative remedies. In the case of an AJD, the appellant must first file a Request for Appeal (RFA) to the next higher level within the Army Corps. The administrative appeal process is explained in 33 CFR Parts 320, 326 and 331.

The Administrative Appeal Process

AJDs are issued at the Army Corps district level. There are forty-five Army Corps Districts in the United States. There are eight Army Corps Divisions which exercise oversight of the Districts. If an aggrieved person wants to appeal an AJD issued by one of the Districts, s/he must submit an RFA to the appropriate Army Corps Division within 60 days of the AJD.

Once an RFA is submitted to the Division, a Regulatory Appeals Review Officer (RARO) will be assigned to the case. Upon receiving the RFA, the RARO has 30 days to review it and determine whether the RFA is complete. If the RFA is incomplete, it will be returned to the appellant for revisions.  Once the RFA is deemed acceptable, in most cases the RARO will schedule a meeting with the appellant and the Corps District that issued the AJD. In some cases the RARO will conduct a site visit to the subject property. The RARO will then brief the Division Engineer on the RFA. The Division Engineer will make one of two findings: (1) the RFA has merit; or (2) the RFA does not have merit.

If the RFA is found to lack merit, the AJD stands as-is and the administrative review process is complete. On the other hand, if the RFA has merit, the District Engineer will return the AJD to the District for reconsideration. 

Importantly, the Division Engineer does not have the authority to change or reverse an AJD. The District Engineer simply decides whether the RFA has merit, and if so, directs the District to reconsider the AJD.  It is then up to the District that issued the AJD to decide what changes, if any, to make.

In some cases the District will stand by its AJD and make no changes.  In other cases the District will revise its findings and issue a new AJD. But in either event, this ends the administrative appeal process for the purposes of the Administrative Procedure Act. Only when the RFA process has been exhausted as described above may the owner/developer request judicial review of the AJD by filing a Complaint against the Army Corps in the federal district court with jurisdiction over the property location.

Although federal litigation can be intimidating for some, landowners and developers aggrieved by the Army Corps’ sometimes overbroad interpretation of federal jurisdiction might be wise to seek relief in the court system. The Sackett decision, especially when coupled with the Supreme Court’s 2024 decision in Loper Bright Enters. v. Raimondo[xiv] which ended the “Chevron deference” standard previously afforded to federal agency decisions, shows that the Army Corps does not have the final say in determining the extent of its own authority. The forthcoming release of the new EPA definition of WOTUS may reduce the Army Corps’ authority even more.

It will be very interesting to see what impact, if any, the new WOTUS definition will have on the Army Corp’s AJD findings and upon the cases which are currently stayed pending the EPA’s new guidance. This is indeed a very interesting time to be practicing environmental law.

Bryan Peeples is a Pender & Coward attorney focusing his practice in the areas of maritime and riparian law, eminent domain/right of way law, and worker’s compensation.