Jurisdictional Determinations

Update on SMC's PJD's

To: Certified Wetland Specialists, Community Enforcement Officers, & Other Interested Parties:

The Navigable Waters Protection Rule (NWPR), which re-defines waters of the United States (WOTUS), becomes effective on June 22, 2020The full rule published in the Federal Register, including preamble, can be viewed at: https://www.govinfo.gov/content/pkg/FR-2020-04-21/pdf/2020-02500.pdf. Specifically, pages 22338-22339 contain Part 328 – Definition of WOTUS.

Under the NWPR, four main categories of wetlands and waters will be WOTUS (subject to federal regulation under the Clean Water Act):

  1. Territorial seas and “Traditional Navigable Waters,” such as the Fox & Des Plaines Rivers.
  2. Tributaries – perennial & intermittent streams, such as Squaw Creek, Mill Creek and Indian Creek.
  3. Most lakes and ponds, such as Bangs Lake & Hastings Lake, and impoundments of waters #1 & 2 above.
  4. Wetlands adjacent to waters # 1 through 3 above (must touch or have a surface hydrologic connection if separated by a berm or road - e.g., culvert).

The NWPR specifically excludes 12 types of wetlands and waters, notably: most ditches, stormwater control structures constructed in upland, groundwater, and ephemeral drainage features (see rule for complete list of exclusions).

SMC’s wetland staff will continue to perform preliminary wetland jurisdictional determinations (PJD’s) in the company of a representative from the USACE-Chicago District. Jurisdiction of WOTUS will be determined following the definitions in the NWPR and implementation guidance provided by the USACE. Areas not meeting the WOTUS definition will be considered Isolated Waters of Lake County (IWLC), subject to regulation under the Lake County Watershed Development Ordinance (WDO), unless such areas meet the exclusion criteria listed under the definition of IWLC in Appendix A of the WDO, as determined by the community Enforcement Officer.

For your convenience, SMC’s fillable form for requesting a PJD and/or boundary verification of IWLC can be downloaded from: SMC’s fillable form (PDF) . If you have any questions regarding SMC’s PJD services, please contact our wetland specialists: Glenn Westman [email protected] or Juli Crane [email protected].

Jurisdictional Determinations

The Lake County Watershed Development Ordinance (WDO) requires that wetland permit submittals include a written jurisdictional determination (JD) to ascertain if the delineated wetlands/waters on the site are Waters of the United States (WOUS) or Isolated Waters of Lake County (IWLC). Only the U.S Army Corps of Engineers (USACE)-Chicago District, Lake County Stormwater Management Commission (SMC) or Lake County Planning, Building and Development Department (PBD); for unincorporated Lake County) are authorized to perform JDs in Lake County. SMC (and PBD) perform JD field reviews in the company of USACE representative(s) and generally issue JD letters within 30 days of receipt of a completed request form, field conditions permitting. See the PJD/BV Request Form (PDF).

Snow cover may preclude JD field observations and delay issuance of the JD letter. SMC and PBD charge a nominal review fee for processing JDs. The applicant may opt to request a JD directly from the USACE by submitting a completed request form to the USACE-Chicago District Regulatory Branch. See the USACE JD Request Form (PDF). The USACE does not charge a fee for JDs, but does not follow a specified time-line for JD review and issuance.

U.S Waters

WOUS include “navigable waters” (i.e., major lakes, rivers, streams, and associated hydrologically-connected wetlands) that are regulated by the USACE under the federal Clean Water Act (CWA) or Rivers and Harbors Act (RHA). For developments that will impact WOUS, the applicant must obtain a separate permit from the USACE. See Wetland Permits/Approvals for more information.

IWLC are defined in Appendix A of the WDO as “all waters such as lakes, ponds, streams (including intermittent streams), farmed wetlands, and wetlands that are not under U.S Army Corps of Engineers jurisdiction.” For developments that will impact IWLC, the applicant must obtain written authorization from the SMC (or an IWLC-certified community) prior to issuance of a Lake County Watershed Development Permit (WDP). See Wetland Permits/Approvals for more information.

Boundary Verifications (BVs)

Either as part of a JD request or as a separate action, an applicant may request a written verification of the boundaries of wetlands/waters that have been delineated on a development site (refer to Wetland Determinations). BVs are recommended before delineated wetland boundaries are surveyed to avoid the possible need for re-survey, if adjustments are requested by the regulatory agencies (SMC, PBD and USACE) based on field observations. Note that SMC and PBD are only authorized to verify delineated IWLC boundaries (the USACE verifies WOUS boundaries). SMC and PBD charge a nominal review fee for IWLC BVs. To request a BV of delineated IWLC from the SMC, you need to submit a completed request form, along with required documentation (e.g., wetland delineation aerial photograph exhibit) and applicable BV review fee. See the PJD/BV Request Form (PDF).

To request a written boundary verification for delineated WOUS, you should submit a completed request form directly to the USACE-Chicago District Regulatory Branch. See the USACE JD Request Form (PDF).