5 January 2022 – Navigable Waters Protection Rule Vacatur
The Environmental Protection Agency and U.S. Army Corps of Engineers (“the agencies”) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule (“NWPR”) nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.
On November 18, 2021, the agencies announced the signing of a proposed rule to revise the definition of “waters of the United States.” This proposal marks a key milestone in the regulatory process announced in June 2021. The agencies propose to put back into place the pre-2015 definition of “waters of the United States,” updated to reflect consideration of Supreme Court decisions. This familiar approach would support a stable implementation of “waters of the United States” while the agencies continue to consult with states, tribes, local governments, and a broad array of stakeholders in both the current implementation and future regulatory actions.
A durable definition of “waters of the United States” is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a review conducted by the agencies as directed by the January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”
Further details about the agencies’ plans, including information regarding the upcoming public meetings and proposed rule docket, can be found here.
An approved jurisdictional determination (“AJD”) is a document provided by the Corps stating the presence or absence of “waters of the United States” on a parcel or a written statement and map identifying the limits of “waters of the United States” on a parcel. See 33 C.F.R. § 331.2. Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 2005) (Regulatory Guidance Letter (RGL) 05–02).
As a general matter, the agencies’ actions are governed by the definition of “waters of the United States” that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. AJDs completed prior to the court’s decision and not associated with a permit action (also known as “stand-alone” AJDs under RGL 16-01) will not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. A NWPR AJD could also be reopened if the recipient of such an AJD requests a new AJD be provided pursuant to the pre-2015 regulatory regime. In that case, the Corps will honor such request recognizing that if the recipient of a NWPR AJD intends to discharge into waters identified as non-jurisdictional under the NWPR but which may be jurisdictional under the pre-2015 regulatory regime, such recipient may want to discuss their options with the Corps. AJD requests pending on, or received after, the Arizona court’s vacatur decision will be completed consistent with the pre-2015 regulatory regime.
As the agencies’ actions are governed by the regulatory definition at the time of the action, permit decisions made prior to the court’s decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. Permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. The Corps will not rely on an AJD issued under the NWPR (a “NWPR AJD”) in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the pre-2015 regulatory regime). Therefore, for any currently pending permit action that relies on a NWPR AJD, or for any future permit application received that intends to rely on a NWPR AJD for purposes of permit processing, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the pre-2015 regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on a preliminary JD or no JD whatsoever.
November 2, 2021 - The U.S. Army Corps of Engineers, as part of an interagency effort with the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture Natural Resources Conservation Service, is announcing the availability of the final 2020 National Wetland Plant List (NWPL). The Federal Register Notice for the 2020 NWPL update can be found here: https://www.federalregister.gov/documents/2021/11/02/2021-23891/national-wetland-plant-list
The NWPL provides plant species wetland indicator status ratings, which are used in determining whether the hydrophytic vegetation factor is met when conducting wetland delineations under the Clean Water Act and wetland determinations under the Wetland Conservation Provisions of the Food Security Act. Other applications of the NWPL include wetland restoration, establishment, and enhancement projects. The list is effective as of 2 November 2021 and will be used in any wetland delineations performed after this date. Completed wetland delineation/determination forms should reference the version of the NWPL used to complete the form. The final NWPL is available at https://wetland-plants.sec.usace.army.mil/ (preferred browsers are Chrome and Firefox).
October 1, 2021- South County Transition (Palm Beach Gardens AOR to the Cocoa AOR )
The U.S. Army Corps of Engineers (Corps), Jacksonville District, Regulatory Division has updated the geographic area of responsibility for the Palm Beach Gardens and Cocoa Regulatory field offices. The new boundaries will allow the Corps to more effectively balance workload. Currently, the Palm Beach Gardens field office processes projects located in Okeechobee, St. Lucie, Martin, Palm Beach, and Broward Counties. Effective October 1, 2021, the Cocoa field office will process all in-coming (new) applications in Okeechobee, St. Lucie, and Martin Counties. The Palm Beach Gardens field office will continue to review projects within Palm Beach and Broward Counties, and shall also continue to process any pending applications within Okeechobee, St. Lucie and Martin Counties submitted prior to October 1, 2021.
As of October 1, 2021, all applications shall be submitted to the following locations:
For Counties: Palm Beach and Broward
Hard Copy: U.S. Army Corps of Engineers
Palm Beach Gardens Permit Office
4400 PGA Boulevard, STE 500
Palm Beach Gardens, FL 33410
Phone: (561) 472-3504
Fax: (561) 626-6971
For Counties: Okeechobee, St. Lucie, Martin, Brevard, Indian River, Osceola, Orange, Seminole and Volusia
Hard Copy: U.S. Army Corps of Engineers
Cocoa Permit Office
400 High Point Drive, STE 600
Cocoa, Florida 32926
Phone: (321) 504-3771
Fax: (321) 504-3803
Map Link- https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/19122
30 July 2021 – EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States
The Environmental Protection Agency (EPA) and the Department of the Army (Army) have announced plans for upcoming community engagements to inform their efforts to revise the definition of “waters of the United States” (WOTUS). EPA and Army have stated a commitment to developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries.
EPA and Army are announcing a series of engagement opportunities, including an opportunity for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on the rulemaking. In addition, the agencies are initiating Federalism and Tribal consultations for the foundational rule. The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both rulemakings.
The full announcement can be found here: https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states.
For more information on submitting written recommendations or to register for the public meetings, see www.epa.gov/wotus.
Here is the link to the Headquarters webpage to view the full announcement: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/
9 June 2021 - EPA, Army Announce Intent to Revise Definition of Waters of the United States:
The Environmental Protection Agency and Department of the Army have announced their intent to revise the definition of “waters of the United States” to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant, permanent environmental degradation,” said EPA Administrator Michael S. Regan. “We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”
“Together, the Department of the Army and EPA will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies and our state and Tribal co-regulators, and is shaped by the lived experience of local communities” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham.
The agencies’ new regulatory effort will be guided by the following considerations:
- Protecting water resources and our communities consistent with the Clean Water Act.
- The latest science and the effects of climate change on our waters.
- Emphasizing a rule with a practical implementation approach for state and Tribal partners.
- Reflecting the experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, Tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.
The agencies are committed to meaningful stakeholder engagement to ensure that a revised definition of waters of the United States considers essential clean water protections, as well as how the use of water supports key economic sectors. Further details of the agencies’ plans, including opportunity for public participation, will be conveyed in a forthcoming action. To learn more about the definition of waters of the United States, visit https://www.epa.gov/wotus.
December 22, 2020 – The State of Florida assumes a portion of the Section 404 of the Clean Water Act program.
On December 22, 2020, the Florida Department of Environmental Protection (DEP) assumed regulatory responsibility for a portion of Section 404 of the Clean Water Act (State 404 Program). The Corps continues to maintain Section 404 authority over certain waters, referred to as ‘retained’ waters. Retained waters include those waters that (1) are specifically listed in the Retained Waters List (2) waters subject to the ebb and flow of tide, and (3) wetlands adjacent thereto landward to a 300-foot administrative boundary. In the case of a project that involves a discharge of dredged or fill material both waterward and landward of the 300-foot guideline, the Corps will retain jurisdiction to the landward boundary of the project for the purposes of that project only. Click here to access FDEP's webpage for a map to help determine if your project resides in Retained Waters.