C.F.R. » Title 33 » CHAPTER II—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE › PART 325—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS

33 C.F.R. § 325.9

Authority to determine jurisdiction

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District engineers are authorized to determine the area defined by the terms “navigable waters of the United States” and “waters of the United States” except:

(a) When a determination of navigability is made pursuant to 33 CFR 329.14 (division engineers have this authority); or

(b) When EPA makes a section 404 jurisdiction determination under its authority.

Notes of Decisions
Cited in 7 cases (2 in the last 5 years), 1983–2023 · leading case: Tabb Lakes, Inc. v. United States, 26 Cl. Ct. 1334 (Ct. Cl. 1992).
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Tabb Lakes, Inc. v. United States, 26 Cl. Ct. 1334 (Ct. Cl. 1992). · cites it 2× “13 *1339 On or about July 18, 1988, the Corps Office of Counsel issued a Jurisdictional Determination pursuant to 33 C.F.R. § 325.9 . It concluded that wetlands contained within sections 3, 4, and 5 of plaintiff’s property fell within the Corps definition of “waters of the…”
S. Nat. Gas Co. v. Pontchartrain Materials, Inc., United States of Am., 711 F.2d 1251 (5th Cir. 1983). “33 C.F.R. § 325.9 (a) (emphasis added). Together, these sections manifest the broad function performed by the Corps in regulating the activities of both public and private entities on navigable waters.”
Green Acres Enter., Inc. v. United States, 418 F.3d 852 (8th Cir. 2005). · cites it 2× “Yet, even though authorized to determine jurisdiction under the CWA, 33 C.F.R. § 325.9 , the Corps failed to make this determination at any time.”
Norman v. United States, 38 Fed. Cl. 417 (Fed. Cl. 1997). “§ 1344 (granting Corps of Engineers authority to regulate wetlands and other waters of the United States, and authority to issue permits allowing discharge of fill materials into waters within the Corps’ jurisdiction); 33 C.F.R. § 325.9 (granting Corps of Engineers, acting…”
Lewis v. United States of Am. (M.D. La. 2019). · cites it 2× “§ 1344 (f)(1)(A); the Corps is authorized to issue jurisdictional determinations stating whether waters are considered wetlands, 33 C.F.R. §§ 325.9 , 331.2; and, the Corps may issue a cease-and-desist for violations, 33 C.”
Hoosier Env't Council v. Nat. Prairie Indiana Farmland Holdings LLC (N.D. Ind. 2021). “33 C.F.R. § 325.9 . “A determination pursuant to this authorization shall constitute a Corps final agency action.”
Hoosier Env't Council v. Nat. Prairie Indiana Farmland Holdings LLC (N.D. Ind. 2023). “See 33 C.F.R. § 325.9 . A number of issues within the Corps’ competence are important to the proper resolution of the CWA claims, and the court prefers to know the Corps’ position on these issues.”
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