1. Current Standards and Proposed Wotus Changes
The standard in effect governs today’s jurisdictional review. A proposed narrowing of federal coverage does not establish that a particular wetland is exempt or authorize work on the site.
Rulemaking Status
As of October 14, 2026, EPA’s published guidance identifies the November 2025 proposal and September 2026 supplemental proposal as pending rulemaking. The supplemental comment period ended October 9. California generally remains subject to the 2023 rule as amended following Sackett v. EPA.
Permanence and Surface Connection
Sackett rejected the significant nexus test. Federal wetlands jurisdiction requires a continuous surface connection to a qualifying water, with no clear boundary between the water and wetland.
The supplemental proposal considers definitions of “perennial,” “relatively permanent,” and “continuous surface connection.” Proposed limits on temporary interruptions are not current universal tests. A dry-season photograph alone does not settle jurisdiction.
2. Federal and State Permit Requirements
Federal jurisdiction and state water protection require separate assessments. A feature outside WOTUS may still qualify as waters of the state, leaving state authorization necessary for proposed dredge or fill discharges.
| Review | Trigger | Possible requirement |
|---|---|---|
| Section 404 | Dredged or fill material discharged into WOTUS | Corps authorization, unless an exemption applies |
| Section 401 | Federal license or permit for an activity that may discharge into WOTUS | Water quality certification or applicable waiver |
| State water review | Dredge or fill discharge affecting waters of the state | WDRs or another applicable authorization |
Section 404 regulates the discharge activity; a wetland’s presence does not mean every nearby construction activity requires a permit. Section 401 addresses water quality in connection with federal licensing or permitting.
Under Porter-Cologne, Water Boards regulate discharges to waters of the state, including qualifying non-federal waters. The state dredge-or-fill Procedures contain exclusions and general-order paths. Environmental law review should identify the applicable path rather than assume federal exclusion removes state obligations.
3. Site Evidence and Jurisdictional Determinations
A site review should distinguish aquatic-resource boundaries, agency jurisdiction, and construction impacts. Each answers a different question, and one report may not resolve them all.
Delineation, Ajds, and Pjds
Wetland delineation identifies resource boundaries through field evidence. An Approved Jurisdictional Determination, or AJD, states the Corps’ jurisdictional conclusion. A Preliminary Jurisdictional Determination, or PJD, allows permitting to proceed on an assumption of jurisdiction; it does not confirm that a feature is non-jurisdictional.
An AJD is not a construction permit. Its study area should cover the resources affected by the planned work.
Records That Support Review
Useful records include dated photographs, delineation reports, seasonal flow data, maps of connecting waters, and plans showing temporary and permanent impacts. These materials should describe ordinary conditions and explain observations made during drought or unusually wet periods.
4. Reviewing Approvals before Construction
An older assessment may cover a different footprint from the current design. Before grading or placing fill, compare the proposed work with existing determinations, permit conditions, and agency correspondence.
A relocated access road or drainage structure may affect resources outside the previous study area. New discharges or material changes to existing discharges can require further Water Board review. A pending WOTUS proposal does not automatically cancel existing conditions.
Local grading and land use and zoning approvals do not establish compliance with separate water requirements. General permit or general-order coverage also depends on eligibility and conditions, rather than the project’s label alone.
5. Frequently Asked Questions
Permit applicants also need to consider whether a jurisdictional determination is necessary and how temporary work affects authorization.
Is an Ajd Required before Applying?
No. Applicants can seek a Corps permit without first obtaining an AJD. Whether to request one depends on the jurisdictional dispute, available site evidence, and project approach.
Can Temporary Fill Require a Permit?
Yes. Temporary access roads or other fill discharges into WOTUS can require authorization. Planned removal does not automatically create an exemption, so applications should identify temporary impacts alongside permanent ones.
6. Legal Review of Unresolved Permit Issues
When agency findings or permit conditions conflict with the design, an attorney can review the record and assess available administrative law procedures. Qualified environmental professionals supply the technical findings; legal review addresses their implications for jurisdiction, approvals, and the proposed constructio
14 Oct, 2026
