Final Rosemont Mine and Twin Pines AJD Memo

DEPARTMENT OF THE ARMY
OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS
108 ARMY PENTAGON
WASHINGTON DC 20310-0108
SACW 3 June 2022
MEMORANDUM FOR COMMANDING GENERAL, U.S. ARMY CORPS OF

ENGINEERS
SUBJECT: Approved Jurisdictional Determinations (AJDs) for the Rosemont and Twin
Pines Parcels
1. References:
a. Memorandum for the Heads of Executive Departments and Agencies dated

January 26, 2021 from President Joseph R. Biden, subject: Tribal Consultation and
Strengthening Nation-to-Nation Relationships.
b. Memorandum for Commanding General, U.S. Army Corps of Engineers dated

April 20, 2021, from the Acting Assistant Secretary of the Army (Civil Works), subject:
Rescission of Previous Guidance – Tribal Consultation Associated with a Draft
Approved Jurisdictional Determination (AJD).
c. Letter to Mr. Stuart Gillespie of Earthjustice dated January 8, 2021, from the Los
Angeles District Commander of the U.S. Army Corps of Engineers, subject: Tribal
Consultation Concerning HudBay Mineral’s Approved Jurisdictional Determination
Requests (AJDs) Relating to the Rosemont Copper Mine.
d. Letter to Col. Daniel Hibner, Savannah District Commander of the U.S. Army
Corps of Engineers dated April 10, 2020, from Mr. Turner Hunt, Muscogee Creek Nation
(MCN) Historic and Cultural Preservation Department.

2. Background. The U.S. Army Corps of Engineers (Corps) makes formal
determinations stating the presence or absence of “waters of the United States” on a
parcel through the issuance of an AJD. See 33 CFR 331.2. The Corps applies the
criteria set forth in the rule defining “waters of the United States” when determining
whether a parcel contains jurisdictional waters. See 33 CFR 328.3. The Navigable
Waters Protection Rule (NWPR) was issued on April 21, 2020, to define “waters of the
United States.” (85 FR 22250). On August 30, 2021, the NWPR was vacated
nationwide (Pascua Yaqui Tribe v. U.S. Environmental Protection Agency).
In his January 26, 2021 memorandum, President Biden reaffirmed the Federal
government’s enduring commitment to consultation as a means of strengthening the
sovereign relationship between the United States and our Tribal Nations (reference
1.a.). The memorandum directs all Federal agencies to engage in regular, meaningful,
SACW
SUBJECT: Approved Jurisdictional Determinations (AJDs) for the Rosemont and Twin Pines
Parcels
and robust consultation with Tribal Nations on Federal actions that have Tribal
implications. The Army’s Civil Works program has a long history of consultation with
Tribal Nations on its projects, rules, and regulatory permit actions, and the Army Civil
Works program is committed to maintaining and enhancing its record on consultation.
The Acting Assistant Secretary of the Army for Civil Works issued a memorandum on
April 20, 2021 (reference 1.b.). The April 20 memorandum rescinded a previous
memorandum that precluded tribal consultation associated with a draft AJD.
3. Rosemont Parcels AJD. On January 8, 2021, the Los Angeles District (LA District) of
the Corps sent a letter to Mr. Stuart Gillespie of Earthjustice which rescinded the offer of
government-to-government consultation with the Tohono O’odham Nation, the Pascua
Yaqui Tribe, and the Hopi Tribe on the AJD requests received for the Rosemont parcels
pursuant to the memorandum rescinded by reference 1.b. (reference 1.d.). On March
14, 2021, the LA District issued an AJD for the Rosemont parcels which determined that
all ephemeral waters present on the site were excluded per regulation codified by the
NWPR.
4. Twin Pines Parcel AJDs. In a letter dated April 10, 2020, MCN stated that they had
not been officially consulted on the Twin Pines parcel AJD as required (reference 1.e.).
Additionally, the MCN later asked the Savannah District of the Corps (Savannah District)
in a March 2021 email about the process to consult on JDs. The Savannah District
provided a copy of the memo dated January 4, 2021, which had precluded tribal
consultation associated with a draft AJD and was later rescinded on April 20, 2021
(reference 1.b.). The Savannah District provided two AJDs on October 15, 2020, and
March 24, 2021. These two AJDs concluded that 556 acres of wetlands were excluded
under the NWPR.
5. This memorandum directs the Corps to immediately notify the AJD recipients for the
Rosemont and Twin Pines parcels that they cannot rely on those AJDs to accurately
delineate jurisdictional waters under the current regulatory regime and that their NWPR
AJDs are not valid because the government-to-government consultations for the Federal
actions regarding the determinations of jurisdictional status of waters on the parcels
were not conducted as requested by the Tribes. As noted earlier, the Corps previously
determined that the government-to-government consultation request for the Rosemont
AJD was to be honored and the MCN previously inquired about government-to-
government consultation for the Twin Pines AJDs. Given the specific circumstances
associated with these AJDs, it is my policy decision that the Corps should have honored
these government-to-government consultation requests.
2
SACW
SUBJECT: Approved Jurisdictional Determinations (AJDs) for the Rosemont and Twin Pines
Parcels
The Corps is also directed to notify the Rosemont and Twin Pines project proponents of
their option to request a new AJD. Any newly issued AJD must follow the applicable
regulatory regime for the definition of “waters of the United States” at the time of AJD
issuance. With the vacatur of the NWPR, AJD requests are currently being completed
consistent with the pre-2015 regulatory regime. If a new AJD request is received, the
Corps shall extend government-to-government consultation requests to the Tohono
O’odham Nation, the Pascua Yaqui Tribe, and the Hopi Tribe for the Rosemont parcels
and the MCN for the Twin Pines parcel, as well as any other Tribal Nations who may be
implicated by the respective AJDs. If consultation is initiated, no new AJD will be issued
until the conclusion of such consultation.
6. Upon conclusion of any tribal consultations that may occur, and prior to the District
making any decisions on the path forward for any AJD requested, the Corps shall
provide an update to the ASA(CW) in the form of a briefing on the consultation process
conducted with the Tribes.
7. These circumstances are unique to the Rosemont and Twin Pines parcels AJDs.
Accordingly, the direction in this memorandum is limited to these AJDs and is not
intended to establish or rescind any separate, nationwide policy guidance.
8. Questions regarding this matter may be directed to Stacey Jensen, Assistant for
Regulatory and Tribal Affairs, Office of the Assistant Secretary of the Army (Civil
Works), at (703) 459-6026 or [email protected].
MICHAEL L. CONNOR
Assistant Secretary of the Army
(Civil Works)
cf: DCG-CEO
DCW

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DEPARTMENT OF THE ARMY

OFFICE OF THE ASSISTANT SECRETARY

SACW 3 June 2022

MEMORANDUM FOR COMMANDING GENERAL, U.S. ARMY CORPS OF

a. Memorandum for the Heads of Executive Departments and Agencies dated

b. Memorandum for Commanding General, U.S. Army Corps of Engineers dated

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