MEMORANDUM FOR DIRECTOR OF CIVIL WORKS AND 

US EPA REGIONAL ADMINISTRATORS 

Subject: U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of 

Engineers (Corps) Coordination on Jurisdictional Determinations (JDs) under Clean Water 

Act (CWA) Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions 

 

1. Purpose. The purposes of this memorandum are to promote and improve interagency 

cooperation, facilitate increased communication, and establish an efficient and effective 

process for determining Clean Water Act Section 404 jurisdiction in light of the Supreme 

Court decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers, 531 U.S. 159 (2001) (SWANCC), and the consolidated cases Rapanos v. United 

States, and Carabell v. United States, 126 S. Ct. 2208 (2006) (jointly hereafter Rapanos). 

The procedures included in this memorandum replace the coordination procedures contained 

in the January 2003 EPA/Army guidance implementing the SWANCC decision (but leaves 

the remainder of that guidance unaffected) and articulate new coordination procedures for 

JDs affected by Rapanos. This memorandum does not nullify or supersede the 1990 

Geographic Jurisdiction Memorandum of Agreement (MOA), including its special case 

provisions. 

2. Current Practice. The Corps districts are currently posting all Approved JD Forms for 

public review on their respective websites. The EPA efficiently reviews these JD forms, as 

needed, to monitor consistency with regulation and policy. 

3. Documentation Requirements. Under this memorandum, case-by-case evaluations are 

required to determine if there is a “significant nexus” to navigable waters for JDs involving 

the classes of waters listed in subparagraph 4.a.(2). Documentation for these JDs shall be 

made using the Approved JD Form developed by Corps headquarters (HQ) in consultation 

with EPA. The information on the jurisdictional form shall identify the rationale for 

asserting or not asserting jurisdiction. 

4. Coordination Requirements.

a. Interagency Coordination Required. The EPA and the Corps will follow the coordination 

procedures in paragraph (5) for the following JDs: 

 

 (1) Determinations for intra-state, non-navigable, isolated waters potentially covered 

solely under 33 C.F.R. §328.3(a)(3), where jurisdiction is asserted or not asserted based on 

interstate commerce factors. 
 (2) Determinations based on a finding of a “significant nexus” with traditional navigable 

waters, which are required for the following waters: 

 (i) non-navigable tributaries that do not typically flow year–round or have continuous 

flow at least seasonally (e.g., typically at least 3 months each year); 

 (ii) wetlands that are adjacent to such tributaries; and 

(iii) wetlands that are adjacent to but that do not directly abut a relatively permanent 

non-navigable tributary. 

b. Interagency Coordination Not Required. Interagency coordination following the 

procedures below is not required for JDs involving traditional navigable waters, including 

their adjacent wetlands, and for relatively permanent non-navigable tributaries of traditional 

navigable waters, including wetlands with a continuous surface connection with such 

relatively permanent tributaries. 

5. Coordination Procedures.

1, 2 Effective immediately, for all waters referenced in 

paragraph 4.(a), agency coordination of JDs will be conducted as follows: 

a. The Corps district will conduct the JD, document the basis and rationale for asserting or 

declining to assert jurisdiction under the CWA, and provide an electronic copy of the draft 

JD form to the appropriate EPA regional office. To facilitate and expedite the coordination 

of documents, both agencies will, to the maximum extent feasible, transmit all documents 

electronically. For purposes of this guidance, when documents are transmitted electronically, 

the date of receipt shall be the date of transmission. 

b. Corps districts will provide the appropriate EPA regional office and Corps HQ with an 

electronic copy of every draft JD form (and supporting documentation) proposing to assert 

or decline jurisdiction over an intrastate, non-navigable, isolated water. The EPA regional 

office will in turn be responsible for ensuring that EPA HQ also receives copies of every 

such JD form in a timely manner. The EPA regional office will review the JD forms 

pursuant to the procedures in paragraphs 5.c. and 5.d. below. Draft JDs elevated to HQ 

under paragraph 5.d. will be reviewed by EPA and Corps HQs pursuant to the procedures 

outlined in paragraph 5.e. below. In addition, either Corps HQ or EPA HQ may choose to 

initiate a joint HQ review of a particular JD involving an intrastate, non-navigable, isolated 

water. Such joint HQ review must be initiated within 21 calendar days of when the district 

provided copies of the draft JD to the EPA Region and Corps HQ. The joint HQ review will 

proceed pursuant to the procedures in subparagraph e.(2)(i) or e.(2)(ii) as appropriate. If 

neither the Corps HQ or EPA HQ chooses to initiate a joint review within 21 calendar days, 

and the EPA regional office does not elevate within the timeframes identified under 

paragraph 5.d., the district may proceed and finalize the JD. 

 

1

 Should any deadline in this interagency memorandum fall on a weekend or holiday, the deadline will be the next business day. 

2

Coordination procedures are presented in Figures 1 and 2. Where a jurisdictional determination is associated with potential 

authorization of a project under a Nationwide Permit (NWP), it may be necessary for the Corps and EPA to establish an alternative 

consultation schedule to accommodate NWP timeframes potentially associated with the particular project. 

2
c. With respect to interagency coordination of other jurisdictional determinations, the EPA 

regional office may review the JD form to determine if it will comment on the Corps’ 

determination. To help facilitate an efficient review of the draft JD and to expedite the 

review process, the EPA may ask the Corps to provide a copy of the documentation provided 

by the applicant and/or responsible party, where the JD is considered complex. The agencies 

will coordinate and attempt to resolve any JD issues at the local level within 15 calendar days 

after EPA’s receipt of the form. EPA may notify the Corps at any time within the 15 day 

period that it does not intend to provide comments on a particular draft JD. Within these 15 

calendar days, the EPA regional office may elect to elevate the review to their Regional 

Administrator (RA) and so notify the Corps district in writing.3

 Such written notification 

shall briefly explain the rationale for EPA’s position. If no notification is provided by EPA 

within the 15 calendar days, the Corps district may proceed and finalize the JD. 

d. When the JD is elevated to the RA, the RA and the District Engineer (DE) shall have 10 

calendar days from the date of EPA’s notification to the Corps under paragraph 5.c. above to 

resolve the issue. If the issue is not resolved between the RA and DE, the RA shall, within 

the 10 calendar days, elevate the JD to EPA HQ and concurrently provide written notification 

to the DE that the JD is being elevated. Upon receipt of notification from EPA that the 

matter has been elevated, the DE shall immediately provide the draft JD record to Corps HQ. 

If no notification of elevation is provided by EPA within the 10 calendar days, or a resolution 

is otherwise reached, the Corps district may proceed and finalize the JD. 

e. The Corps and EPA HQs will review and provide guidance on elevated draft JDs as 

follows: 

(1) The Corps and EPA shall coordinate efficiently and appropriately to reach agreement on 

the JD. 

(2) The Corps and EPA shall initiate discussions no later than 5 calendar days after 

notification of elevation under paragraph 5.d. above to determine if an interagency agreement 

exists on the elevated JD. 

 (i) If a mutual decision is reached on the assertion or declination of jurisdiction, a joint 

HQs level decision memo discussing the rationale of the decision will be provided to 

EPA and Corps field offices no later than 14 calendar days after HQ interagency 

discussions were initiated; or 

 (ii) If a mutual decision is not reached at the EPA and Corps HQs, a joint HQs level 

decision memo prepared by EPA explaining EPA’s rationale in support of an approved 

JD will be provided to EPA and Corps field offices no later than 21 calendar days after 

interagency discussions were initiated. Copies of the joint memo will be provided to all 

Corps districts and to EPA Regional offices. 

 

3

 For the purposes of this guidance, “in writing” or “written notification” may include electronic mail communication. 

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(iii) Upon receipt of the joint HQs level decision memo, the Corps district may issue an 

Approved JD pursuant to the memo and post the JD form on its website. 

f. A HQs decision made pursuant to either subparagraph e.(2)(i) or (ii) above will be 

considered an appealable action for purposes of the Corps administrative appeals process 

under 33 C.F.R. 933 1 et seq. However, any decision on appeal will not question or overturn 

any legal or policy determination made by EPA or Corps HQs pursuant to this joint guidance 

memorandum, but can examine and question any matter or finding of fact. If the Review 

Officer determines that the HQs decision was based on a mistake of fact or a lack of 

necessary facts that determination can be presented to EPA andlor Corps HQs suggesting 

reconsideration of the decision. 

6. This guidance will remain in effect indefinitely for isolated, intra-state, non-navigable 

waters potentially covered only under 33 C.F.R. §328.3(a)(3) where jurisdiction is being 

asserted or not asserted using interstate commerce factors unless and until this guidance is 

revoked or modified in writing by agreement of both agencies. This guidance for all other 

waters addressed herein shall remain in effect for six months from the date of the last 

signature on this memorandum unless otherwise extended or modified by written agreement 

of both agencies. 

- ,- r--, -> ' I 

Benjamin H. Grumbles John Paul Woodley, Jr. / J 

Assistant Administrator for Water Assistant Secretary of the Army 

U. S. Environmental Protection Agency (Civil Works) 

Date: r/i//7 P 

/ 
Figure 1: General Coordination 

Process. Note: If JD request 

supports a NWP application, 

see Figure 2a. 

Coordination pursuant to memo 

with EPA is not required. Corps 

district may issue Approved JD and 

post JD form on website.

Yes 

RO reviews JD and coordinates with Corps 

within 15 calendar days from receipt of JD.

Corps district submits JD form to EPA 

Regional Office (RO).

RO elevates JD to EPA 

Regional Administrator 

(RA) and notifies Corps 

within 15 calendar days 

from receipt of JD? 

No (unless undergoing 21 day review) 

Corps district may issue 

Approved JD and post JD 

form on website.

Yes 

Yes (unless undergoing 21 day review) 

No 

Yes 

Yes 

Corps district may issue Approved JD per EPA 

HQ Memo and post JD form on website.

No

RA and District 

Engineer (DE) resolve 

issues within 10 

calendar days of RO 

elevation?

No

RA elevates JD to EPA HQ and notifies DE. DE 

submits JD to Corps HQ. Corps and EPA HQs initiate 

discussions within 5 days from RA elevation.

Agreement 

reached at HQs?

EPA/Corps HQs issue joint Memo to field within 

14 calendar days from start of HQs discussions.

JD involves intra-state, nonnavigable, isolated waters. 

No 

Yes 

Corps HQ or EPA HQ 

initiate joint HQs review 

of JD within 21 calendar 

days of Corps district 

submittal of JD form? 

Corps district provides electronic JD form 

(and supporting documentation) to EPA 

Regional Office (RO) and Corps HQ. RO 

submits JD form to EPA HQ.

JD involves significant nexus standard 

or JD involves intra-state, nonnavigable, isolated waters3

EPA/Corps HQs issue joint Memo, 

prepared by EPA, to all Corps 

districts and EPA regional offices 

within 21 calendar days from start 

of HQs discussions?

 No

Corps district completes Jurisdictional 

Determination (JD) form. 

JD involves intra-state 

non-navigable isolated 

waters, or waters 

requiring a significant 

nexus finding to TNW to 

be jurisdictional? 

(21 day review applies to intra-state, 

non-navigable, isolated water JDs) 

(21 day review applies to intra-state, 

Corps district may proceed and non-navigable, isolated water JDs) 

finalize JD, if Regional 

Administrator (RA) does not 

elevate for HQ level review.

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Notes: 1.A headquarters decision pursuant to this process will be considered an appealable action for purposes of the Corps administrative appeals process under 33 C.F.R. §331 et seq. However, 

any decision on appeal will not question or overturn any legal or policy determination made by EPA or Corps headquarters pursuant to this joint guidance memorandum, but can examine and question 

any matter or finding of fact. If the Review Officer determines that the headquarters decision was based on a mistake of fact or a lack of necessary facts, that determination can be presented to EPA 

and/or Corps headquarters suggesting reconsideration of the decision. 

2. This guidance will remain in effect indefinitely for isolated, intra-state, non-navigable waters potentially covered only under 33 C.F.R. §328.3(a)(3) where jurisdiction is being asserted or not 

asserted using interstate commerce factors unless and until this guidance is revoked or modified in writing by agreement of both agencies. This guidance for all other waters addressed herein will 

remain in effect for six months from the date of the last signature on this memorandum unless otherwise extended or modified by written agreement of both agencies. 

3. For JDs that involve intra-state, non-navigable waters, the elevation process must proceed along both paths of EPA/Corps referral per the procedures outlined in the joint coordination memo. 

4. The above process does not apply for applications (pre-construction notifications) for Nationwide Permits (see Figure 2). 
Figure 2a: Coordination Requirements for JDs 

Involving “Significant Nexus” Evaluation with 

TNWs and Supporting NWP Applications 

Start. District completes Jurisdictional 

Determination (JD) form. 

 Yes 

 No See Figure 2b: Coordination 

Requirements for JDs 

Involving Non-Navigable, 

Intra-State, Isolated Waters 

Does the JD involve 

“significant nexus” 

evaluation with TNWs? 

Does EPA notify district 

that JD will be elevated 

to HQ within 15 days of 

receipt of the JD? 

The district forwards JD form (and 

supporting documentation) to HQ. 

 No Does HQ request additional 

information from the district 

within 10 days of receipt of 

the elevation? 

The district forwards the 

information immediately to HQ. 

The district office may request additional 

information form the applicant (45-day 

PCN clock stops until adequate 

information is received). District 

immediately forwards information to HQ 

once determined adequate and district 

restarts PCN processing clock. 

 Yes 

 Yes 

In accordance with HQ 

recommendations district may 

issue Approved JD and post JD 

form on website 

 No Does HQ provide 

response to district 

within 40 days of receipt 

of JD? 

District may issue Approved 

JD and post JD form on 

website. 

District immediately submits JD form to EPA 

Regional Office (RO). 

 No 

 Yes 

Notes: 1.A headquarters decision pursuant to this process will be considered an appealable action for purposes of the Corps administrative appeals process under 33 C.F.R. §331 et seq. 

However, any decision on appeal will not question or overturn any legal or policy determination made by EPA or Corps headquarters pursuant to this joint guidance memorandum, but 

can examine and question any matter or finding of fact. If the Review Officer determines that the headquarters decision was based on a mistake of fact or a lack of necessary facts, that 

determination can be presented to EPA and/or Corps headquarters suggesting reconsideration of the decision. 

2. This guidance for all other waters addressed herein will remain in effect for six months from the date of the last signature on this memorandum unless otherwise extended or modified 

by written agreement of both agencies. 

3. The process above applies for applications (pre-construction notifications) for Nationwide Permits involving “significant nexus” evaluations with TNWs. 

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Figure 2b: Coordination Requirements for 

JDs Involving Non-Navigable, Intra-State, 

Isolated Waters and Supporting NWP 

Applications 

Continuation from Figure 2a. 

 Yes 

 No Coordination pursuant to memo 

with EPA is not required. Corps 

district may issue Approved JD and 

post JD form on website. 

Does the JD involve intrastate, non-navigable, 

isolated waters/wetlands? 

 No 

Does HQ request 

additional information 

from the district within 

10 days of receipt of JD?

Does the Corps district 

have the information 

available? 

The district forwards the 

information immediately to HQ. 

The district office may request additional 

information form the applicant (45-day 

PCN clock stops until information 

necessary to make the PCN complete is 

received). District immediately forwards 

information to HQ once determined 

adequate and district restarts PCN 

 Yes 

 No 

 Yes 

 No 

Does HQ provide 

response to district 

within 10 days of receipt 

of JD? 

District may issue Approved 

JD and post JD form on 

website. 

In accordance with HQ 

recommendations district may 

issue Approved JD and post JD 

form on website 

 Yes 

 Yes 

 No 

Does HQ provide 

response to district 

within 40 days of receipt 

of JD? 

District notifies Corps HQ immediately of action 

and then Corps HQ will immediately notify EPA 

HQ of request. Within 15 days of receipt of 

request, the Corps district recommends assertion or 

declination of jurisdiction. District provides 

electronic JD form (and supporting documentation) 

to EPA and Corps HQ.

Notes: 1.A headquarters decision pursuant to this process will be considered an appealable action for purposes of the Corps administrative appeals process under 33 C.F.R. §331 et seq. 

However, any decision on appeal will not question or overturn any legal or policy determination made by EPA or Corps headquarters pursuant to this joint guidance memorandum, but 

can examine and question any matter or finding of fact. If the Review Officer determines that the headquarters decision was based on a mistake of fact or a lack of necessary facts, that 

determination can be presented to EPA and/or Corps headquarters suggesting reconsideration of the decision. 

2. This guidance will remain in effect indefinitely for isolated, intra-state, non-navigable waters potentially covered only under 33 C.F.R. §328.3(a)(3) where jurisdiction is being asserted 

or not asserted using interstate commerce factors unless and until this guidance is revoked or modified in writing by agreement of both agencies. 

3. The process above applies for applications (pre-construction notifications) for Nationwide Permits involving non-navigable, intra-state, isolated waters, including wetlands. 

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