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<br />7A - ATTACHMENT NO.2 <br />Page 7 <br /> <br />Similarly, sections 9 and 10 of the Rivers and Harbors Act ("RHA") prohibit placing fill <br />material, dikes, dams, or other structures in, or otherwise obstructing, the "navigable <br />waters of the United States" without first obtaining a permit from the USACE. (33 <br />U.S.C. ~~ 401,403.) <br /> <br />Both the CW A and RHA require a determination of the scope of USACE' s <br />jurisdiction. Jurisdiction differs under each statute. This difference is generally denoted <br />by the difference in the definition of "navigable waters" under each statute. (United <br />States v. Milner, 583 F.3d 1174 (9th Cir. 2009) ("Milner".) Under the Rivers and <br />Harbors Act, USACE's jurisdiction over navigable waters generally includes "all places <br />covered by the ebb and flow of the tide to the mean high water (MWH) mark in its <br />unobstructed, natural state." (Leslie Salt Co. v. Froehlke, 578 F.2d 742, 753 (9th Cir. <br />1978).) Structures that were previously above the MWH, however, can become subject <br />to USACE's jurisdiction if the tide line moves and if the structures obstruct the natural <br />state of the MWH. (Milner, supra, 583 F.3d at p. 1193.) Under the Clean Water Act, <br />USACE's jurisdiction over navigable waters includes all waters of the United States, the <br />extent of which are marked by the reach of the high tide line. (Id. at pp. 1194-1195.) <br />Thus, USACE's jurisdiction is broader under the Clean Water Act. Additionally, if land <br />has remained dry, even if through artificial means, it will not be regulated by the Clean <br />Water Act if the discharge on land does not reach or have an effect on the "waters of the <br />United States." <br /> <br />In the past, the extent of jurisdiction has generally been determined when the <br />applicant would submit to USACE a jurisdictional delineation of "wetlands" and "waters <br />of the United States." US ACE would then verify the delineation based on established <br />criteria. These criteria derive from USACE's 1987 Wetland Delineation Manual. This <br />manual requires an assessment of the physical and biological conditions at the site. The <br />conditions to be assessed include whether a site contains a hydrophytic plant community, <br />wetland hydrology, or hydric soils. The verified delineation then became the basis for <br />determining whether the applicant requires a permit, and if so, the applicant's <br />responsibilities with respect to avoiding or compensating for the project's impacts to the <br />delineated wetlands. <br /> <br />This "traditional" approach has been further clarified by Regulatory Guidance <br />Letter ("RGL") No. 08-02 (RGL 08-02) issued by USACE on June 26, 2008. RGL 08- <br />02 provides the Corps with guidance regarding the use of "approved jurisdictional <br />determinations" ("JDs") and "preliminary jurisdictional determinations" ("PJDs") when <br />implementing Section 404 of the CW A and Sections 9 and 10 of the RHA. By and <br />through the use of PJDs, USACE and the applicant can set aside differences of opinion <br />regarding the extent of USACE' s jurisdiction; the PJD presumes jurisdiction and allows <br />for expedited permit processing. In this fashion, the "typical" process of USACE <br />verification is removed if the site is presumed to be jurisdictional through a PJD; the <br /> <br />7 <br />