Has anyone had any experiences yet with the Approved JD form and how the Corps is filling it out when it comes to this section?

Section III.B.1.(ii)(c) Flow
Surface flow is: (Discrete, Confined, Discrete and Confined, Overland Sheet Flow)

I have asked my local regulators and they indicated they have not been given any guidance on what these terms mean. They have asked, but have not received it. The two words never appear in the 2007 JD Guidebook (May 2007 Guidebook), but do appear in the 2008 version (December 2008 Guidebook).

The only other place I can find these two terms together in the CWA are under the NPDES section:

"any discernable, confined and discrete conveyance, including but not limited to any pipe ditch, channel, tunnel, conduit, well, ..."
33 USC 1362(14) referring to point sources.

I have a recently approved JD where the Corps claims that the surface flow in my feature in question is "Discrete and Confined" and I would like to know what they mean by that. Does that mean that my drainage ditch is actually a point source now?

I won't get into the details of the remainder of the JD, the other features or any other parts of the form. I am just curious if anyone else out there has seen any glossary of terms, definitions, or other guidance on what those terms mean.

I think the same reference to these terms is on page 11 of the June 2007 guidance, in the first paragraph. It's the same reference in the December 2008 Guidance.

Dear Craig,

The "Approved JD Form" was issued with the June 2007 Guidance and is unofficial and outdated. The Dec. 2008 Guidance states on page 12 that the Corps and EPA are developing a revised JD form (which has not yet been issued).

Both the June 2007 and Dec 2008 Guidance documents and Approved JD Form are preliminary and unofficial, and do not impose legally binding requirements on the agencies or the regulated community (see Footnote 17 - Dec. 2008 Guidance).

The current official nationwide laws governing CWA jurisdiction are SWANCC and Rapanos. When these cases are properly applied to determine the boundaries of CWA jurisdiction, the results are legally valid and generaly more consistent than the methdologies proposed in the Guidance documents.

This message has been edited. Last edited by: Johnny Stevens,

Don't complain or question; this is government at its best, and I would anticipate that the prcess will get even bigger and better with the current administration. All of the guidance you reference talks about process, not decisions. Your local Corps regulators are not required to address their decisions, only their process for decisions. The SWANCC decision by the Supreme Court addressed "isolated" wetlands. It did not address "wetlands that are not part of a surface tributary system". The Rapanos decision addressed ditches, not discrete water conveyances. I have a copy of Websters Dictionary on my desk and I expect most regulators do also. It has always been and always will be a "word" game. You need to find out what your local Corps district wants and work to give them that answer, if you want an answer sooner rather than later. I know that Mr. Stevens may disagree with this statement, but unfortunately it is the reality for most people. Mr. Rapanos fought this reality and the Supreme Court seemed to side with him. However, read the entire history of his case and you may have trouble finding any real victory for him. When I see the terms that Craig has listed, I simply think "ditches". I would ask the Corps district if they are going to assert jurisdiction, and then label them as whatever the Corps wants.

This may ultimately lead to another Supreme Court ruling, but don't be surprised if a new Supreme Court with new justices brings a new decision with even more confusion.