SUPPORTING STATEMENT – PART A
Wetland Determination Automated Data Sheets and Jurisdictional Determination Forms – 0710-0024
1. Need for the Information Collection
On August 30, 2021, the U.S. District Court for the District of Arizona vacated and remanded the Navigable Waters Protection Rule (NWPR), issued on April 21, 2020 (85 FR 22250) in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency (No. 20-00266). In light of this order, the U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) halted implementation of the NWPR and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. Though EPA and the U.S. Army Corps of Engineers (Corps) are not currently implementing the NWPR, the agencies are aware that further developments in litigation over the rule could bring the rule back into effect. This information collection request thus implements certain collections of information associated with both the Department of Army’s implementation of the NWPR and the pre-2015 regulatory regime that is currently in place (i.e., the 1986 regulations defining “waters of the United States” as informed by Supreme Court case law). We are providing information to support both regimes to ensure our ability to implement either one, if required by additional legal actions.
The U.S. Army Corps of Engineers (Corps) has been collecting information through its Wetland Determination Sheets and Jurisdictional Determination forms since 2006. However, those collections had not previously been approved under the Paperwork Reduction Action. A total of 15 forms are included in this submittal, consisting of 10 Automated Wetland Determination Sheets (ENG FORM 6116) and five Jurisdictional Determination forms. These forms are identified below:
Automated Wetland Determination Sheets (ADSs):
ENG Form 6116 Alaska ADS
ENG Form 6116-1 Arid West Region ADS
ENG Form 6116-2 Atlantic and Gulf Coastal Plain Region ADS
ENG Form 6116-3 Caribbean Islands Region ADS
ENG Form 6116-4 Eastern Mountains and Piedmont Region ADS
ENG Form 6116-5 Great Plains Region ADS
ENG Form 6116-6 Hawai’i and Pacific Islands Region ADS
ENG Form 6116-7 Midwest Region ADS
ENG Form 6116-8 Northcentral and Northeast Region ADS
ENG Form 6116-9 Western Mountains, Valleys, and Coast Region ADS
Jurisdictional Determination Forms (JDs):
ENG Form 6245 – Approved Jurisdictional Determination Form (Interim): Navigable Waters Protection Rule
ENG Form 6246 – Dry Land Approved Jurisdictional Determination Form (Rapanos Guidance version)
ENG Form 6247 – Request for Jurisdictional Determination (JD)
ENG Form 6248 – Approved Jurisdictional Determination Form (Rapanos Guidance version)
ENG Form 6249 – Preliminary Jurisdictional Determination (PJD)
2023 Rule Approved Jurisdictional Determination Form (ENG Form number pending)
It should be noted that, prior to 2021, some of these forms and data sheets have been in existence for some time (without PRA approval) and this submittal includes the changes to these forms due to recent regulation changes or the most recent scientific updates for plants, soils, hydrology indicators. These are being evaluated under a new OMB control number. Some of the information collected is entered into the Corps tracking database and these forms may support associated permit reviews included in a separate collection (Application for a Department of Army Permit, control number 0710-0003) which expires on 28 Feb 2022.
The need for information collection for each of the ADS and JD Forms is detailed below.
Need for Information Collection: Automated Wetland Determination Sheets
The U.S. Army Corps of Engineers, through its Regulatory Program, regulates certain activities in waters of the United States. Waters of the United States are defined under 33 CFR Part 328. In order for the Corps to determine the amount and extent of waters of the United States at a site, the Corps must geographically delineate aquatic resources in accordance with established regulations, policy, and guidance. To delineate wetland waters of the United States, which are defined in 33 CFR part 328.3(a)(4), the Corps uses the 1987 Corps of Engineers Wetlands Delineation Manual (Corps Manual) and the most current applicable regional supplement(s).
The Corps Manual, published in January 1987, is the current Federal delineation manual used by the Corps Regulatory Program and other agencies for the identification and delineation of wetlands. The manual describes technical guidelines and methods using a three-factor approach to identify and delineate wetlands for purposes of Section 404 of the Clean Water Act (33 U.S.C. 1344) or Section 10 of the Rivers and Harbors Act (33 U.S.C. 401, et seq.). In particular, the Corps Manual generally requires positive evidence of hydrophytic vegetation, hydric soils, and wetlands hydrology for a determination that an area is a wetland.
In an effort to address regional wetland characteristics and improve the accuracy and efficiency of wetland delineation procedures, the U.S. Army Corps of Engineers Engineer Research and Development Center (ERDC) developed ten regional supplements to the Corps Manual, the most recent of which were issued in 2006. In developing the regional supplements, the Corps recognized that a single national manual is unable to consider regional differences in climate, geology, soils, hydrology, plant, and animal communities, and other factors that are important to the identification and functioning of wetlands. The wetland indicators and guidance provided in the regional supplements are designed to be used in combination with the Corps Manual to help identify wetland waters of the United States and inform the Corps’ jurisdictional determinations.
The ten regions for which regional supplements were developed consist of: Alaska Region, Arid West Region, Atlantic and Gulf Coastal Plain Region, Caribbean Islands Region, Eastern Mountains and Piedmont Region, Great Plains Region, Hawai’i and Pacific Islands Region, Midwest Region, Northcentral and Northeast Region, and Western Mountains, Valleys, and Coast Region. Each of the ten regional supplements includes a map showing the spatial extent over which the supplement applies and these regions cover the entire U.S. and U.S. territories. These maps generally correspond to combinations of Land Resource Regions recognized by the U.S. Department of Agriculture Natural Resource Conservation Service (NRCS).
Each of the ten regional supplements includes its own region-specific form (Appendix C of each supplement) to assist respondents with submitting the information to the Corps for the identification and delineation of wetlands in each specific region. These forms are organized by each of the three parameters of jurisdictional wetlands (hydrophytic vegetation, soils, and hydrology) and prompt the respondent to indicate whether data collected for each parameter has resulted in positive evidence of wetland presence. Respondents of the wetland forms must ensure that they are using the correct regional supplement prior to collecting data and completing the form. These forms are most often completed by Corps of Engineers Project Managers (Corps PMs) or environmental consultants.
Although the forms provided in the supplements are effective in helping organize respondents’ data collection process for hydrophytic vegetation, soils, and hydrology, the forms still require that respondents analyze the data, while employing various reference materials, in order to make recommendations regarding whether each factor is indicative of wetland presence. For vegetation, for example, respondents must research each plant’s wetland indicator status using the Corps’ National Wetland Plant List (NWPL) and then transcribe that status on the wetland form. Based on the absolute percent cover data recorded for each plant species, respondents then conduct an analysis (using the ‘dominance test’ or ‘prevalence index’) to determine whether wetland vegetation is present. For soils, respondents must reference hydric (wetland) soil descriptions provided in each regional supplement and compare measurements of the soil profile with those descriptions in order to determine whether the site is positive for the presence of wetland soils.
The Automated Wetland Determination Sheets (ADSs) streamline the information collection process by incorporating reference material and analytical processes directly into the form, which is provided as a Microsoft Excel document rather than the PDF form included in the regional supplements. For example, when recording vegetation data, respondents simply enter the species name – names are stored in the form and made available for selection via drop-down boxes – and the ADS automatically infers species dominance information based on these entries with no referencing of the NWPL required on the part of the respondent. Additionally, the ADSs automatically complete data analysis using inputted information (e.g., the “dominance test” for wetland vegetation), saving respondents time and effort typically required to complete these processes. Such analyses are typically performed by hand using the current forms, introducing a potential source of human error that is eliminated by use of the ADSs. These forms can be accessed on Corps websites - https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/.
Need for Information Collection: JD Forms
Approved jurisdictional determinations (AJDs) and preliminary JDs (PJDs) are tools used by the U.S. Army Corps of Engineers (Corps) to help implement Section 404 of the Clean Water Act (33 U.S.C. 1344) and Sections 9 and 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401, et seq.). Both types of JDs specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.
As stated above, six JD-related forms are included in this submittal:
ENG Form 6245 – Approved Jurisdictional Determination Form (Interim): Navigable Waters Protection Rule (not currently in use after the August 30, 2021 vacatur of the NWPR by a district court and the subsequent September 3, 2021 directive from EPA and Army to interpret WOTUS consistent with the pre-2015 WOTUS regulatory regime)
ENG Form 6246 – Dry Land Approved Jurisdictional Determination Form (Rapanos Guidance version) (will no longer be in use after the March 20, 2023 effective date of the 2023 Rule)
ENG Form 6247 – Request for Jurisdictional Determination (JD)
ENG Form 6248 – Approved Jurisdictional Determination Form (Rapanos Guidance version) (will no longer be in use after the March 20, 2023 effective date of the 2023 Rule)
ENG Form 6249 – Preliminary Jurisdictional Determination (PJD)
2023 Rule Approved Jurisdictional Determination Form
On January 20, 2021, President Biden signed Executive Order (EO) 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (86 FR 7037, January 25, 2021) which ordered agencies to review all actions issued by the previous Administration “that are or may be inconsistent with, or present obstacles to, the policy set forth in [EO 13990].” As directed by that Executive Order, the Corps and EPA are reviewing the NWPR. If the agencies end up revising the definition of “Waters of the United States,” it may be necessary for the Corps to revise the forms included in this ICR under the Paperwork Reduction Act.
The need for information collection for each of these forms is detailed below.
Request for Jurisdictional Determination (JD): The form helps the applicant provide information needed by the Corps to determine whether to proceed with processing a PJD, AJD, or “no permit required” letter from the Corps or follow up with the applicant to provide additional information on the JD types they may request. This form also collects from the applicant all project-specific details needed by the Corps to begin processing a PJD or AJD, such as location of the property and the reason for the request. Finally, by signing the form, the respondent indicates that he/she has the authority (or is acting as the duly authorized agent of person or entity with such authority) to grant the Corps personnel right of entry to legally access the site if needed to perform a JD. This form is not affected by changes to the definition of WOTUS.
Preliminary Jurisdictional Determination (PJD): A PJD is defined in Corps regulations at 33 CFR 331.2. When the Corps provides a PJD or authorizes an activity through a general or individual permit relying on an issued PJD, the Corps is making no legally binding determination of any type regarding whether jurisdiction exists over the particular aquatic resource in question. A PJD is "preliminary" in the sense that a recipient of a PJD can later request and obtain an AJD if that becomes necessary or appropriate during the permit process or during the administrative appeal process. Information collected on the PJD form includes the evaluation date, the name and address of the requestor, the name of the local Corps district office, the site location, and the name, location, size, and type of each aquatic resource that is located in the review area. The PJD form also includes a checklist that can be used to document any information that was used to support the jurisdictional determination. This form is not affected by changes to the definition of WOTUS.
The PJD Form is used by the Corps to collect information needed to inform determinations that there “may be” waters of the U.S. and/or that there “may be” navigable waters of the U.S. on the subject review area, and identifies all aquatic features in the review area that could be affected by the proposed activity. The PJD Form includes a supporting data datasheet that the Corps or the applicant can use to document the data sources used to complete the PJD. These data sources may include wetland data sheets, such as the ADSs described above, or other information used to identify possible Corps jurisdiction (e.g., maps, aerial photography, etc.).
A PJD:
may be requested in order to move ahead expeditiously to obtain a Corps permit authorization where the requestor determines that it is in his or her best interest to do so;
may be requested even where initial indications are that the aquatic resources on a parcel may not be jurisdictional, if the requestor makes an informed, voluntary decision that it is in his or her best interest not to request and obtain an AJD;
may be used as the basis for a permit decision; however, for purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made on the basis of a PJD will treat all aquatic resources that would be affected in any way by the permitted activity on the parcel as jurisdictional;
may include the delineation limits of all aquatic resources on a parcel, without determining the jurisdictional status of such aquatic resources; and,
may be requested through the use of the enclosed "Request for Jurisdictional Determination (JD)" in Appendix 1. Even if the JD requestor does not use the enclosed "Request for JD", the same information and signature provided in the "Request for JD" should be submitted to the Corps district with each JD request.
AJD Forms
An AJD is defined in Corps regulations at 33 CFR 331.2. A definitive, official determination that there are, or that there are not, jurisdictional aquatic resources on a parcel and the identification of the geographic limits of jurisdictional aquatic resources on a parcel can only be made by means of an AJD. AJDs may be either "stand-alone" AJDs or AJDs associated with permit actions. Some "stand-alone" AJDs may later be associated with permit actions, but at time of issuance are not related to a permit application. A "stand-alone" AJD may be requested so that impacts to jurisdictional aquatic resources may be avoided or minimized during the planning stages of a project, or it may be requested in order to fulfill a local/state authorization requirement.
An AJD:
will be used if the Corps is determining the presence or absence of jurisdictional aquatic resources on a parcel;
will be used if the Corps is identifying the geographic limits of jurisdictional aquatic resources on a parcel;
will remain valid for a period of five years (subject to certain limited exceptions clarified in RGL 05-02);
can be administratively appealed through the Corps administrative appeal process set out at 33 CFR Part 331; and,
may be requested through the use of the enclosed "Request for Jurisdictional Determination (JD)" in Appendix 1. Even if the JD requestor does not use the enclosed "Request for JD", the same information and signature provided in the "Request for JD" should be submitted to the Corps district with each JD
On January 18, 2023, the U.S. Environmental Protection Agency and the U.S. Department of the Army (the agencies) announced a final rule revising the definition of “waters of the United States” at 33 CFR 328.3 (“the 2023 Rule”). The 2023 Rule is scheduled to become effective on March 20, 2023. The Corps is proposing to document the basis for AJDs made pursuant to the 2023 Rule using the “2023 Rule AJD Form.” The 2023 Rule AJD Form will be used by Corps Regulatory personnel to document the basis of Corps jurisdiction to support its issuance of an AJD. Additional details are provided in the subsection below.
Approved Jurisdictional Determination Form (Rapanos Guidance Version): This form is used for the collection of information necessary to document jurisdictional waters of the U.S., based on the Corps’ 1986 regulations as implemented in light of the Corps’ 2003 guidance regarding the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (“SWANCC”), and the Corps’ 2008 guidance document “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States” (Rapanos guidance). This is the version in effect after the Pascua Yaqui Tribe v. U.S. Environmental Protection Agency decision of August 30, 2021.
Prior to August 31, 2021 and since June 22, 2020, the NWPR approved jurisdictional determination (AJD) form was used. With the issuance of the NWPR, the 1986 regulations and the SWANCC and Rapanos guidance documents were not in effect anywhere in the U.S., therefore the Corps returned to collecting any information using the Rapanos AJD form. Because the NWPR has been challenged by multiple litigants and multiple WOTUS cases remain pending in the courts, it is possible that the Corps will need to use the Rapanos AJD form in the future. This eventuality was realized on August 30, 2021. Moreover, the EPA and Department of Army are currently reviewing the NWPR in accordance with EO 13990. While the review of jurisdiction is ongoing and no final decisions have been made, one or more outcomes of the agencies’ review could potentially necessitate that the Corps use the 1986 regulation and SWANCC and Rapanos guidance (and therefore the Rapanos AJD form) in one or more states once again. Instead of submitting a revised information collection request at that time, the Corps believes it is more appropriate to have that form approved now in the interest of time and efficiency. We are also including the NWPR form with this submittal in case individual court decisions overturn the Arizona decision and some states return to using the NWPR.
The form includes the following sections:
Background Information: This section collects information on AJD date, ORM number, project location, and type of review performed.
Summary of Findings: In this section, jurisdictional aquatic resources within the review area are classified in terms of their designation under the Rapanos guidance with their size and jurisdictional limits identified as well. Non-regulated wetlands/waters are also identified.
CWA Analysis: In this section, the form guides respondents through the completion of analyses necessary to determine the jurisdictional status of certain waters of the U.S., such as Traditional Navigable Waters (TNWs) and tributaries to TNWs and conduct significant nexus determinations.
Data sources: This section collects information on data that were used to aid in the jurisdictional determination, such as maps, photos, or data sheets (such as the ADSs described above).
Dry land Approved Jurisdictional Determination Form (Rapanos Guidance Version): This form is an abbreviated version of the “Approved Jurisdictional Determination Form” that documents the absence of waters of the U.S. on a parcel pursuant to 33 CFR Part 331.2. The form serves as an efficient tool for documenting when sites contain only dry land, reduces confusion for the public about why so many fields on the “Approved Jurisdictional Determination Form” are blank for such determinations, and helps ensure that regulators are accurately and appropriately filling out the approved JD form for such determinations. This form is to be used when applying the pre-2015 WOTUS regulatory regime. The form includes the following sections:
Background Information: This section collects information on AJD date, ORM number, project location, and type of review performed.
Summary of Findings: The section is a highly simplified version of the Summary of Findings section included in the “Approved Jurisdictional Determination Form.” In this section, the respondent simply specifies whether there are or are not waters of the U.S. within the review area.
Data sources: This section collects information on data that were used to aid in the jurisdictional determination, such as maps, photos, or data sheets (such as the ADSs described above).
Approved Jurisdictional Determination Form (NWPR version). This form is used for the collection of information necessary to document jurisdictional waters of US regulated under the NWPR, effective June 22, 2020 – August 13, 2021. This form is to be used when applying the NWPR. The form includes the following sections:
Administrative information: This section includes the date completed, ORM2 tracking number, other JDs associated with this JD, and location information.
Findings section: Documents the types of WOTUS and the basis for jurisdiction for each category of WOTUS by statutory authority.
Supporting information: Information about resources that were used to aid in the determination and includes data/maps to this document and/or references/citations in the administrative record, as appropriate.
2023 Rule Approved Jurisdictional Determination Form: This form will be used by Corps district staff to document the basis for its AJDs completed pursuant to the 2023 Rule. The 2023 Rule AJD Form provides a highly efficient and organized process for collecting and summarizing jurisdictional basis information. Specifically, the 2023 Rule AJD Form will streamline collection of the jurisdictional basis information using information response prompts that allow the Corps Regulatory staff to document complex information accurately and fully with minimal effort from the public. Without the 2023 Rule AJD Form, the information to fully and accurately describe the Corps’ basis of jurisdiction would need to be organized and documented through some other means (e.g., a Memorandum for Record), and the public would not realize substantial benefits in terms of time, effort, and accuracy of data collection and reporting that would result from use of the 2023 Rule AJD Form.
The 2023 Rule AJD Form includes the following sections:
Administrative Information: This section collects information on AJD date, ORM number, and project location.
Summary: In this section, the categories of jurisdictional aquatic resources within the review area are summarized.
Findings in the Review Area: In this section, the categories of jurisdictional aquatic resources within the review area are classified in terms of their designation under the 2023 Rule with their size and jurisdictional limits identified as well. Non-regulated wetlands/waters are also identified.
Supporting Information: This section collects information on data that were used to aid in the jurisdictional determination, such as maps, photos, or data sheets (such as the ADSs described above).
Appendix A – Significant Nexus Analysis: This appendix will be used by Corps Regulatory staff to document the outcome of the analyses necessary to determine whether certain categories waters (tributaries and adjacent wetlands that do not meet the 2023 Rule’s “relatively permanent standard”) do or do not meet the criteria to be waters of the U.S. based on the 2023 Rule’s “significant nexus standard.”
Appendix B – Significant Nexus Analysis: This appendix will be used by Corps Regulatory staff to document the outcome of the analyses necessary to determine whether certain categories waters (“other waters” that do not meet the 2023 Rule’s “relatively permanent standard”) do or do not meet the criteria to be waters of the U.S. based on the 2023 Rule’s “significant nexus standard.”
A total of 1 form (including two attachments, designated “Attachment A” and “Attachment B”) is included in this submittal, consisting of the 2023 Rule AJD Form (ENG XXXX). Upon release, the 2023 Rule AJD Form will be made available on the Corps websites (https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/).
2. Use of the Information
Use of the Information: Automated Wetland Determination Sheets
Wetland data sheets are included as part of wetland delineations completed by permit applicants to support and inform determinations as to whether jurisdictional wetlands are present on a project site. The ADSs are formatted such that they may be readily converted to Portable Document Format (PDF) for inclusion as part of the applicant’s request. The most efficient version of the form is the macro enabled excel spreadsheet which provides data to support the hydrophytic vegetation and hydric soil portion of the form.
Applicants for Corps permits are generally required to submit JDs as part of their permit application or in support of the permit evaluation process. If wetlands are present, the Corps generally requires that JDs include adequately documented wetland data sheets in order for the JD to be considered technically adequate. For example, an adequately documented JD must be provided by permit applicants applying for coverage under the Corps’ Nationwide Permit (NWP) Program.1 Specifically, General Condition #32 of the 2017 Nationwide Permit Program requires that pre-construction notification (PCN) submittals include a “delineation of wetlands, other special aquatic sites, and other waters…on the project site.” General Condition #32 further requires that “wetland delineations…be prepared in accordance with the current method required by the Corps.”
Information collected in wetland forms is used extensively for the purpose of establishing Corps jurisdiction and evaluating Corps-jurisdictional activities. The extent of this use is illustrated by the fact that the Corps processes approximately 80,000 permit applications per year, a large number of which propose impacts to wetlands. A single permit application requesting authorization to discharge dredged or fill material into wetlands may require the submittal of a large number of wetland forms documenting the presence of multiple wetlands of varying sizes (delineation of larger wetlands generally requires the completion of multiple wetland forms). As an alternative to the wetland data sheets provided in the regional supplements, the ADSs are anticipated to be widely used to support determinations of jurisdictional wetland presence throughout a large number of permit applications.
Use of the Information: JD Forms
The use of the information collected in each of the JD Forms is detailed as follows:
Request for Jurisdictional Determination
This Request for Jurisdictional Determination form is used to facilitate requests from the public for the Corps to complete a jurisdictional determination. This form allows members of the public to easily describe the geographic area for which they request the Corps complete a jurisdictional determination (JD Review Area) and to provide authorization to the Corps to access the site as needed to complete a jurisdictional determination. The Corps uses this AJD Form to help implement Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act of 1899 and to help specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.
Preliminary Jurisdictional Determination: The PJD form is used to determine whether aquatic resources that exist on a particular parcel "may be" subject to regulatory jurisdiction. The PJD form cannot be used to determine either that there are no jurisdictional aquatic resources on a parcel at all (e.g., the entire parcel consists of dry land or the parcel only includes non-jurisdictional aquatic resources), or that only a portion of the aquatic resources on a parcel are jurisdictional. This form may include the delineation limits of all aquatic resources on a parcel as long as the PJD does not determine the jurisdictional status of such aquatic resources. The Corps uses the PJD Form to help implement Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act of 1899 and to help specify what geographic areas will be presumed to be jurisdictional and therefore treated as subject to regulation by the Corps under one or both statutes.
Approved Jurisdictional Determination Form (Rapanos Guidance): This AJD form documents Corps jurisdiction under the Corps’ 1986 regulation and 2003/2008 guidance by providing a definitive, official determination that there are/are not jurisdictional aquatic resources on a parcel based on the jurisdictional requirements. This AJD form is also used to officially identify the geographic limits of jurisdictional aquatic resources on a parcel. The Corps uses this AJD Form to help implement Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act of 1899 and to help specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.
Dry Land Approved Jurisdictional Determination Form (Rapanos Guidance): This AJD form documents Corps jurisdiction under the Corps’ 1986 regulations and 2003/2008 guidance by providing a definitive, official determination that jurisdictional aquatic resources are absent from a parcel. The Corps uses this AJD Form to help implement Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act of 1899 and to help identify and specify geographic areas that are documented as specifically not subject to regulation by the Corps under one or both statutes.
Approved Jurisdictional Determination Form (NWPR version): This AJD form documents Corps jurisdiction under the Corps’ June 22, 2020 – August 31, 2021 regulation by providing a definitive, official determination that there are/are not jurisdictional aquatic resources on a parcel based on the jurisdictional requirements. This AJD form was also used to officially identify the geographic limits of jurisdictional aquatic resources on a parcel. The Corps used this AJD Form to help implement Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act of 1899 and to help specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes. An applicant may use this AJD form for the reasons specified on the “Request for Jurisdictional Determination” form (see above).
2023 Rule Approved Jurisdictional Determination Form: The 2023 Rule AJD form documents the extent of and basis for the Corps jurisdiction under the 2023 Rule as based on the 2023 Rule’s jurisdictional requirements. The Corps will use the 2023 Rule AJD Form to help implement Section 404 of the Clean Water Act and Sections 9 and 10 of the Rivers and Harbors Act of 1899 and to help specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes. The 2023 Rule AJD Form will be completed independently by Corps Regulatory staff using a combination of information submitted by the JD requestor and information gathered by the Corps during office reconnaissance and on-site field visits.
Even though the 2023 Rule AJD Form is an internal form for use by Corps personnel, some members of the public occasionally complete a draft version of the AJD form and will submit it as part of their request for an AJD. As part of our request for collection 0710-0024 which includes the AJD Forms that are currently in use prior to the effective date of the 2023 Rule, Corps district representatives were polled to estimate the percentage of AJDs completed for which the requestor provided a completed draft AJD form. The average response from the Corps district representatives was that a requestor of an AJD would include a completed draft AJD for approximately 15 percent of AJD requests – this reflects the fact that the Corps, rather than the requestor, bears the responsibility for completing the AJD forms.
3. Use of Information Technology
Use of Information Technology: Automated Wetland Determination Sheets
Respondent will enter new information in each ADS for each wetland determination completed. The ten different versions of the ADS have been developed as Microsoft Excel files, one for each of the regional supplements, and formatted such that they may be readily converted to PDF for inclusion as part of application submittals, often as supporting information included in the applicant’s JD request.
Applicants may submit ADSs electronically in either PDF or Excel format as part of their JD request/application packages. Electronic submittals may be received by the Corps via email or File Transfer Protocol (FTP) services such as Army Research Laboratory (ARL) Secure Access File Exchange (SAFE). The Corps is currently not able to accept automated application submissions. This capability is not being pursued at this time but may be in the future as newly developed technologies become available. We estimate about half of all application forms are received electronically. This percentage is increasing as more applicants become familiar with our program and are emailing in their completed PDF submittals. Additional outreach efforts to describe the submittal process can increase the 50% estimate.
In addition to electronic submittals, the forms may be printed and submitted in hard copy with the applicant’s JD request/application package via post mail or via courier for large applications/plans.
Use of Information Technology: JD Forms
Information technology considerations for each of the JD forms included in this submittal are detailed below.
Request for Jurisdictional Determination: This form is currently available as a non-fillable PDFs and is an appendix to RGL 16-01. Corps regulators and the public generally complete this form using the PDF “add text” tool or may complete the form by hand.
Preliminary Jurisdictional Determination Forms: This form is currently available as a fillable PDFs and is an appendix to RGL 16-01. Corps regulators and the public generally complete this form electronically using the fillable PDF but may also complete the form by hand.
Approved Jurisdictional Determination Forms and Dry Land Approved Jurisdictional Determination Form: These forms are available as fillable PDFs that are completed electronically by the applicant or consultant.
2023 Rule Approved Jurisdictional Determination Form: The 2023 Rule AJD Form is a Microsoft Word template that is completed by the Corps Regulatory staff or an individual JD requestor. The form will be completed by typing text into fields and selecting checkboxes in the form, as needed to document the basis for the Corps decision in an AJD. The 2023 Rule AJD Forms is currently undergoing an internal forms review process to receive an ENG Form number, at which point it will be converted to a fillable PDF. Neither the content of the form nor its utility will change substantially as a result of conversion to fillable PDF, though the fillable PDF is anticipated to be more user-friendly.
4. Non-duplication
The information obtained through this collection is unique and is not already available for use or adaptation from another cleared source.
While some respondents may be small businesses, this information collection does not impose any additional burdens on small businesses or entities as compared to other respondents.
6. Less Frequent Collection
If the ADSs are not made available, the public will not be able to benefit from the streamlined information collection processes that they provide. As discussed above, although basic PDF versions of the wetland forms are currently available to the public as part of each of the ten regional supplements, these versions do not support the automation capabilities provided by the ADSs. Specifically, the ADSs streamline information collection by incorporating reference material (e.g., NWPL indicator statuses) and analytic processes (e.g., determining hydric soil indicator based on data entry to soil profile) directly into the form. Without the ADSs, the various automation features that they provide over the current wetland forms (detailed in Section 1 above), would not be made available to the public. Without these advancements, the public would not realize substantial benefits in terms of time, effort, and accuracy of data collection that would result from use of the ADSs over the current forms.
If the Jurisdictional Determination forms are not made available, the public will not be able to benefit from the streamlined information collection processes that they provide. It is not required that the JD Forms be used to provide the basis for each jurisdictional determination, and that information can be provided via other means. However, the JD forms do provide a highly efficient and organized process for collecting and summarizing that jurisdictional basis information. Specifically, the JD forms streamline collection of the jurisdictional basis information using information response prompts that allow complex information to be accurately and fully documented with minimal effort from the public. Without the JD forms, the information to fully and accurately document the basis of jurisdiction would need to be provided in some other form, and the public would not realize substantial benefits in terms of time, effort, and accuracy of data collection and reporting that would result from use of the JD Forms.
7. Paperwork Reduction Act Guidelines
This collection of information does not require collection to be conducted in a manner inconsistent with the guidelines delineated in 5 CFR 1320.5(d)(2).
8. Consultation and Public Comments
Part A: PUBLIC NOTICE
A 60-Day Federal Register Notice (FRN) for the collection was published on Tuesday, February 21, 2023. The 60-Day FRN citation is Volume 88 FR 10500.
No comments have been received during the 60-Day Comment Period.
This revision request is being submitted to OMB as an emergency request in order to receive approval to collect information via the 2023 Rule Approved Jurisdictional Determination Form, which is being added to this request. This form implements the revised definition of “Waters of the United States” (WOTUS) which is established in the final rule published on January 18, 2023. The rule takes effect on March 20, 2023, and the Corps of Engineers is requesting emergency approval by this date. The 60-Day FRN cited above was published before it was determined that the Corps of Engineers would request emergency approval.
Part B: CONSULTATION
No additional consultation apart from soliciting public comments through the Federal Register was conducted for this submission.
No payments or gifts are being offered to respondents as an incentive to participate in the collection.
10. Confidentiality
A Privacy Act Statement is provided on the last worksheet of each regional ADS Excel workbook. A link to the sheet is provided at the top of the first worksheet under the OMB Control Number information. At the time of OMB submission, only the Alaska Region ADS has the functioning link to the sheet with the Privacy Act Statement, but every regional form will have this added.
A Privacy Act Statement is also provided at the top of the Preliminary Jurisdictional Determination Form. The Privacy Act Statement is not required on the other five JD Forms as they do not collect personal information for a system of records.
Information provided on all forms becomes part of the administrative record and may be shared with the Department of Justice or other federal, state, and local government agencies, and the public and may be made available as part of a public notice as required by law.
The SORN associated with this collection [#A1145b, Regulatory Program Files] may be accessed at the following link: https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570115/a1145b-ce/
A draft copy of the PIA, Civil Works Business Intelligence (CWBI), has been provided with this package for OMB’s review.
In accordance with Army Regulation (AR) 25-400-2, records are maintained in the current file area for 6 years after expiration of permits/applications, then destroyed.
11. Sensitive Questions
No questions considered sensitive are being asked in this collection.
12. Respondent Burden, and its Labor Costs
Automated Wetland Determination Sheets
Estimation of Respondent Burden
The respondent burden associated with completing ADSs was estimated using two different queries of permit data contained in our ORM2 database, a query of the total number of Approved Jurisdictional Determinations (AJDs) and a query of total NWP verifications issued for activities in Section 404 waters. ORM2 does not specifically store data on the number of wetland data sheets completed, so these queries relied on routine permitting data to obtain reasonable approximations of the total wetland data sheets completed annually. Due to uncertainty underlying each query’s ability to approximate the total number of wetland data sheets, we validated these data against results of questions asked ORM2 representatives across districts to estimate the percentage of applications that include a wetland delineation, which was used together with the total applications received annually (approximately 74,000) to estimate total delineations received annually. We considered the ORM2 query result that most closely matched this estimate of total delineations received annually to provide the best approximation of total ADSs completed annually by applicants for the purposes of calculating the respondent burden.
Because of changes to the regulatory definition of WOTUS, two AJD forms (NWPR form and the Rapanos form) are included in this package, and this burden estimate therefore must consider the effects of potential changes in the regulatory definition of WOTUS. However, the burden estimates for completing either version of the AJD form are the same. The NWPR AJD form has less sections, but more detailed information is entered in each section, therefore we estimate the time to complete the form would be approximately the same. The number of AJDs completed in an FY remains the same for either regulation (Rapanos or NWPR, therefore these estimates reflect the use of either JD form
ORM2 Query #1 – Total AJDs that were pending or finalized in ORM2 for FY19: AJDs provide applicants with official determinations of the jurisdictional status of aquatic resources identified in the applicant’s JD submittal, including wetlands documented using wetland forms. The total number of AJDs was considered to approximate the total number of wetland forms since a large proportion of AJDs document the presence of jurisdictional wetlands. This query identified a total of 4,818 AJDs that were finalized in FY19. This total assumes one delineation form per AJD may be used, however some parcels may utilize more than one form. Some parcels may not have AJDs completed on them, therefore we are assuming the one to one estimate may be representative.
ORM2 Query #2 – Total number of NWP verifications issued for activities within Section 404 waters of the United States: As discussed in Section 2 above, application submittals for NWP verifications require that applicants provide a JD as part of their application submittal. For this reason, the number of NWP verifications may be considered to approximate the total number of wetland forms, as these forms would be expected to be included with a large proportion of JDs included in PCNs. Results from this query were further filtered to include only those NWP verifications for activities occurring in Section 404 waters of the United States. Jurisdictional activities occurring within Section 404 waters are generally more likely to contain wetland waters of the United States as compared with activities authorized in Section 10-only waters. This query identified a total of 31,049 NWP verifications issued for activities within Section 404 waters in FY19.
ORM2 representative inquiry: During an October 17, 2019 call, ORM2 representatives were asked to estimate the percentage of applications and standalone JDs that include a wetland delineation as part of their application submittal. On average, respondents indicated that approximately 60 percent of applications and standalone JDs include a wetland delineation. Therefore, considering that approximately 74,000 applications were received by the Corps in FY19, this would equate to approximately 44,400 total wetland delineations submitted annually.
The poll result (44,400 wetland delineations) more closely matched the query result for NWP verifications issued for activities within Section 404 waters (31,049 wetland delineations) than it did the query result for total AJDs (4,818 wetland delineations). Therefore, we determined that 31,049 wetland delineations per year would serve as our estimate of the number of ADSs completed annually by applicants for the purpose of calculating the respondent burden. Selecting the higher of the two queried values also helped ensure that the ADS respondent burden was fully accounted for by minimizing the risk of underestimating this total.
We estimated the total time required by respondents to complete each ADS as approximately one hour for respondents with average proficiency with JDs. In practice, this estimate may be lower for respondents with higher levels of expertise at completing wetland forms.
These estimates assume the following
Information has already been collected in the field (i.e., the time needed to fill out the form does not include travel to the site, time spent in the field collecting and analyzing data, obtaining soil or vegetation samples, keying out and identifying vegetation, or traversing the site).
Time to complete the form is estimated as the time to record the data obtained from field observations (which contains time saving macros and lookup up tables for indicator values)
A one hour estimate is reasonable to complete the transcription process
Respondent burden based on total NWP verifications issued under Section 404 in FY19:
Total NWP verifications issued under Section 404 in FY19: 31,049
Approximate number of wetland data sheets: 31,049
Hours required to complete each data sheet: 1
Total annual respondent burden: 31,049 hours
Labor Cost of Respondent Burden
Based on the estimates obtained above as part of calculating the respondent burden, the total labor cost of the respondent burden was estimated as follows.
Labor cost of respondent burden for completing ADSs
The respondent average hourly work wage was obtained from the Bureau of Labor Statistics website and is reported above. This figure represents the average wage for of all US workers from the May 2021 National Occupational Employment and Wage Estimates, and may be too high or too low, depending on the occupation of each applicant. https://www.bls.gov/oes/current/oes_nat.htm#00-0000
JD Forms
Estimation of Respondent Burden
The poll of the ORM2 district representatives mentioned above also requested that representatives provide an estimate of the percentage of applications and standalone JDs in which the applicant has provided a completed JD form (PJD form, AJD form (Rapanos, NWPR, or 2023 Rule version), or Dry Land AJD form). The average response from ORM2 representatives was that applicants include completed JD forms with approximately 15 percent of application/standalone JD submittals – this reflects the fact that the Corps, rather than the applicant, usually completes JD forms. Therefore, for each estimate of respondent burden provided below based on ORM2 queries, the ORM2 query results were multiplied by 15 percent (0.15) to obtain the total number of each form completed by applicants. The burden estimates for completing all versions of the AJD form are the same. The NWPR AJD form has less sections, but more detailed information is entered in each section, therefore we estimate the time to complete the form would be approximately the same. The number of AJDs completed in an FY remains the same for all of these regulations (Rapanos, NWPR, or the 2023 Rule) therefore these estimates reflect the use of whichever JD form is in effect during a given year.
These estimates are based on the following assumptions:
All wetland delineation work and aquatic resource mapping has been completed.
All site research on connectivity of water flows is done.
All typical year assessments are done.
The requestor has categorized all waters into JD and non-JD categories, and now simply wants to capture that info on the form.
Using these assumptions, to actually fill out the NWPR AJD form the JD requestor would need to 1) assign each aquatic resource in the review area to the appropriate line on the form (to Section II.B, II.C, or II.D); 2), use the drop-down to select the appropriate criteria (these are pre-populated on the form and make use of drop-down menus) for why each water meets the conditions to be assigned to that category; 3) provide a brief rationale describing why the aquatic resource meets the conditions to be included in the category to which it was assigned; and 4) use the checklist in Section IV of the form to document the sources of information used to assign the waters to the appropriate categories. As long as these assumptions above are true, simply entering the small amount of information needed on the form would rarely be expected to take more than 30 minutes for each aquatic resource. Because our JDs cover variable amounts of aquatic resources (it could be just one aquatic resource, or it could be a hundred or more) we need to estimate some number of aquatic resources per form. In our experience, the average AJD usually includes about 10 aquatic resources, give or take a few. Many AJDs have no aquatic resources at all, and some (in rare cases) have a hundred or more aquatic resources. Assuming 8-10 aquatic resources per AJD is a conservative overall estimate, and based on that number (10 aquatic resources, on average), 4 hours/form is a reasonable approximation of time to fill out the form by the average user.
Request for Jurisdictional Determination Form:
Number of Respondents: 19,500
Number of Responses Per Respondent: 1
Number of Total Annual Responses: 19,500
Response Time: 10 minutes (0.167 hours)
Respondent Burden Hours: 3,250 hours
Preliminary Jurisdictional Determination Form:
Respondent burden based on total PJDs that were pending or finalized in ORM2 for FY19:
Total PJDs issued in FY19: 10,947
Percent of PJD forms completed by applicants: 15%
Total PJD forms completed by applicants: 1,642
Hours required to complete each PJD form: 1
Approved Jurisdictional Determination Forms (Rapanos, NWPR, or 2023 Rule, whichever is applicable):
Respondent burden based on total AJDs (Rapanos) that were pending or finalized in ORM2 for FY19 (totals also represent costs for the NWPR AJD form that would be completed once on or after the rule effective date, in lieu of a Rapanos AJD form):
Total AJDs (Rapanos) issued in FY19: 3,631
Percent of AJD forms completed by applicants: 15%
Total AJD forms completed by applicants: 545
Hours required to complete each AJD form: 4
Total respondent burden: 2,180 hours
Dry Land Approved Jurisdictional Determination Form:
Respondent burden based on total JDs or delineation concurrences in ORM2 data for FY19 where water type = “Dry Land”:
Total Dry Land AJDs issued in FY19: 286
Percent of Dry Land AJD forms completed by applicants: 15%
Total Dry Land AJD forms completed by applicants: 43
Hours required to complete each Dry Land AJD form: 2 hours
Total respondent burden: 86 hours
Total Submission Respondent Burden (JD Forms):
Total Number of Respondents: 21,730
Total Number of Annual Responses: 21,730
Total Respondent Burden Hours: 7,158
Labor Cost of Respondent Burden
Based on the estimates obtained above for calculating the respondent burden, the total labor cost of the respondent burden was estimated as follows.
Request for Jurisdictional Determination Form:
Labor cost of respondent burden for completing form:
Total number of forms completed annually by applicants: 19,500
Response time: 10 minutes
Respondent hourly wage: $28.01
Labor burden per response: $4.67
Total Labor Burden: $91,032
Preliminary Jurisdictional Determination Form:
Labor cost of respondent burden for completing PJD form:
Total number of PJD forms completed annually by applicants: 1,642
Response time: 1 hour
Respondent hourly wage: $28.01
Labor burden per response: $28.01
Total Labor Burden: $45,992.42
Approved Jurisdictional Determination Forms:
Labor cost of respondent burden for completing AJD form:
Total number of AJD forms completed annually by applicants: 545
Response time: 4 hours
Respondent hourly wage: $28.01
Labor burden per response: $112.04
Total Labor Burden: $61,061.80
Dry Land Approved Jurisdictional Determination Form:
Labor cost of respondent burden for completing Dry Land AJD form:
Total number of Dry Land AJD forms completed annually by applicants: 43
Response time: 2 hours
Respondent hourly wage: $28.01
Labor burden per response: $56.02
Total Labor Burden: $2,408.86
Total Submission Respondent Labor Cost Burden (JD Forms):
Total Number of Annual Responses: 21,730
Total Labor Burden: $200,496
The respondent average hourly work wage was obtained from the Bureau of Labor Statistics website and is reported above. This figure represents the average wage for of all US workers from the May 2021 National Occupational Employment and Wage Estimates, and may be too high or too low, depending on the occupation of each applicant. https://www.bls.gov/oes/current/oes_nat.htm#00-0000
TOTAL BURDEN ON THE PUBLIC (ADSs and JDs)
Total Number of Respondents: 52,779
Total Number of Annual Responses: 52,779
Total Respondent Burden Hours: 38,207
Total Labor Burden: $1,070,177
13. Respondent Costs Other Than Burden Hour Costs
There are no annualized costs to the respondents other than the labor burden costs addressed in Section 12 of this document to complete this action.
14. Cost to the Federal Government
Automated Wetland Determination Sheets
Labor Cost to the Federal Government
Number of Total Annual Responses: 31,049
Processing Time per Response: 0.5 hours
Hourly Wage of Worker(s) Processing Responses: $32.21
Cost to Process Each Response: $16.11
Total Cost to Process Responses: $500,044.15
Operational and Maintenance Costs
Equipment: $0
Printing: $0
Postage: $0
Software Purchases: $0
Licensing Costs: $0
Other: $0
Total: $0
Total Cost to the Federal Government (ADS Sheets)
Total Operational and Maintenance Costs: $0
Total Labor Cost to the Federal Government: $500,044.15
JD Forms
Request for Jurisdictional Determination Form:
Labor Cost to the Federal Government
Number of Total Annual Responses: 19,500
Processing Time per Response: 5 minutes (0.083 hours)
Hourly Wage of Worker(s) Processing Responses: $32.21
Cost to Process Each Response: $ 2.68
Total Cost to Process Responses: $ 52,341.25
Preliminary Jurisdictional Determination Form:
Labor Cost to the Federal Government
Number of Total Annual Responses: 1,642
Processing Time per Response: 0.5 hours
Hourly Wage of Worker(s) Processing Responses: $32.21
Cost to Process Each Response: $16.11
Total Cost to Process Responses: $26,444.41
Approved Jurisdictional Determination Forms:
Labor Cost to the Federal Government
Number of Total Annual Responses: 545
Processing Time per Response: 2 hours
Hourly Wage of Worker(s) Processing Responses: $32.21
Cost to Process Each Response: $64.42
Total Cost to Process Responses: $35,108.90
Dry Land Approved Jurisdictional Determination Form:
Labor Cost to the Federal Government
Number of Total Annual Responses: 43
Processing Time per Response: 1 hours
Hourly Wage of Worker(s) Processing Responses: $32.21
Cost to Process Each Response: $32.21
Total Cost to Process Responses: $1,385.03
Operational and Maintenance Costs
Equipment: $0
Printing: $0
Postage: $0
Software Purchases: $0
Licensing Costs: $0
Other: $0
Total: $0
Total Cost to the Federal Government (JD Forms)
Total Operational and Maintenance Costs: $0
Total Labor Cost to the Federal Government: $115,279.59
Total Cost to the Federal Government: $115,279.59
The respondent average hourly work wage was obtained from the average of a Corps PM unburdened salary for a GS-11 step 5 (average grade of worker preparing/reviewing JD form) standard hourly rate - https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/html/GS_h.aspx
TOTAL COST TO THE FEDERAL GOVERNMENT (ADSs and JDs)
Total Labor Cost to the Federal Government: $615,323.74
Total Operational and Maintenance Costs: $0
Total Cost to the Federal Government: $615,323.74
15. Reasons for Change in Burden
The increase in burden can be attributed primarily to the higher hourly wage estimates from the Bureau of Labor Statistics. Additionally, the request includes burden estimates for the ENG Form 6247, “Request for Jurisdictional Determination (JD),” which were not included in the previous request. The addition of the 2023 Rule AJD Form is not anticipated to increase or decrease the total number of AJD Forms that are submitted by members of the public so its addition does not impact the burden estimates.
16. Publication of Results
The results of this information collection will not be published.
17. Non-Display of OMB Expiration Date
We are not seeking approval to omit the display of the expiration date of the OMB approval on the collection instrument.
18. Exceptions to "Certification for Paperwork Reduction Submissions"
We are not requesting any exemptions to the provisions stated in 5 CFR 1320.9.
1 NWP verifications are the Corps’ most common permit type, accounting for approximately 35,000 of the 56,000 authorizations issued by the Corps in FY18.
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