30 December 2022 - EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections

HQUSACE REGULATORY

Published Jan. 3, 2023

The U.S. Army Corps of Engineers (USACE) and EPA (the Agencies) jointly announce the availability of the Interim Draft of the National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams (National OHWM Manual) and its accompanying data sheet. The Interim Draft National OHWM Manual provides draft technical guidance for identifying and delineating the OHWM using a scientifically supported, rapid framework. The Agencies are requesting comments and feedback from the public and practitioners on the Interim Draft of the National OHWM Manual via the public notice linked below. Following the public comment period and additional field testing, comments and feedback received from the public and practitioners will be utilized to further refine the Interim Draft of the National OHWM Manual for clarity, consistency, and technical accuracy. The one-year testing and comment period ends on December 1, 2023. A final version of the National OHWM Manual is anticipated to be published during 2024.

During the period while the OHWM Manual is an interim draft, OHWM identification and/or delineation for official USACE Regulatory purposes should continue in accordance with the applicable OHWM definition in the Federal regulations, Regulatory Guidance Letter 05-05, and any applicable USACE district policies. However, USACE Regulatory staff are encouraged to test the Interim Draft of the National OHWM Manual and provide comments and feedback by emailing usace.ohwm@usace.army.mil.

• Link to Public Notice: https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll15/id/756
• Link to Interim Draft of the National OHWM Manual: http://dx.doi.org/10.21079/11681/46102
• Link to additional information on the research supporting OHWM identification and delineation: https://www.erdc.usace.army.mil/Media/Fact-Sheets/Fact-Sheet-Article-View/Article/486085/ordinary-high-water-mark-ohwm-research-development-and-training/

The U.S. Army Corps of Engineers (Corps) Albuquerque, Chicago, Detroit, Fort Worth, Galveston, Kansas City, Omaha, Rock Island, St. Louis, St. Paul, and Tulsa Districts, and the U.S. Environmental Protection Agency (EPA), Regions 5, 6, 7, and 8, jointly announce the availability of the Beta Streamflow Duration Assessment Method (SDAM) for the Great Plains (dated September 2022). The method is a rapid assessment tool to help distinguish between ephemeral, intermittent, and perennial streamflow at the reach scale for the Northern and Southern Great Plains SDAM Regions. The beta SDAM may help provide technical guidance for identifying waters that may be subject to regulatory jurisdiction under Section 404 of the Clean Water Act; however, this method does not alter or change the definition of “Waters of the U.S.” 

The 2021 Nationwide Permits (NWP) were published in the Federal Register January 13, 2021 and December 27, 2021. The January 13, 2021 Federal Register notice modified NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, and 52; and adding NWPs 55, 56, 57, and 58; with an effective date of March 15, 2021. The December 27, 2021 Federal Register notice reissued NWP 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49, 53, and 54; and added NWP 59; with an effective date of February 25, 2022. For more information about the 2021 NWPs please go to the following links:

National Information: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/

Omaha District Information: https://www.nwo.usace.army.mil/Missions/Regulatory-Program/Nation-Wide-Permit-Information/

Any questions can be submitted to the following contact information

Email: OmahaRegFS@usace.army.mil

Mail: Omaha District, USACE Attn: Regulatory Branch, Field Support Section 1616 Capitol Ave., Ste. 9000 Omaha, NE 68102

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.

SUMMARY: On December 27, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 73522) announcing the reissuance of 40 existing nationwide permits (NWPs) and one new NWP. These 41 NWPs will go into effect on February 25, 2022, and they will expire on March 14, 2026:

• NWP 1 – Aids to Navigation
• NWP 2 – Structures in Artificial Canals
• NWP 3 – Maintenance
• NWP 4 – Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
• NWP 5 – Scientific Measurement Devices
• NWP 6 – Survey Activities
• NWP 7 – Outfall Structures and Associated Intake Structures
• NWP 8 – Oil and Gas Structures on the Outer Continental Shelf
• NWP 9 – Structures in Fleeting and Anchorage Areas
• NWP 10 – Mooring Buoys
• NWP 11 – Temporary Recreational Structures
• NWP 13 – Bank Stabilization
• NWP 14 – Linear Transportation Projects
• NWP 15 – U.S. Coast Guard Approved Bridges
• NWP 16 – Return Water From Upland Contained Disposal Areas
• NWP 17 – Hydropower Projects
• NWP 18 – Minor Discharges
• NWP 19 – Minor Dredging
• NWP 20 – Response Operations for Oil or Hazardous Substances
• NWP 22 – Removal of Vessels
• NWP 23 – Approved Categorical Exclusions
• NWP 24 – Indian Tribe or State Administered Section 404 Programs
• NWP 25 – Structural Discharges
• NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities
• NWP 28 – Modifications of Existing Marinas
• NWP 30 – Moist Soil Management for Wildlife
• NWP 31 – Maintenance of Existing Flood Control Facilities
• NWP 32 – Completed Enforcement Actions
• NWP 33 – Temporary Construction, Access, and Dewatering
• NWP 34 – Cranberry Production Activities
• NWP 35 – Maintenance Dredging of Existing Basins
• NWP 36 – Boat Ramps
• NWP 37 – Emergency Watershed Protection and Rehabilitation
• NWP 38 – Cleanup of Hazardous and Toxic Waste
• NWP 41 – Reshaping Existing Drainage Ditches
• NWP 45 – Repair of Uplands Damaged by Discrete Events
• NWP 46 – Discharges in Ditches
• NWP 49 – Coal Remining Activities
• NWP 53 – Removal of Low-Head Dams
• NWP 54 – Living Shorelines
• NWP 59 – Water Reclamation and Reuse Facilities

The new NWP 59 authorizes discharges of dredged or fill material into waters of the United States for the construction, expansion, and maintenance of water reclamation and reuse facilities.

The Corps has also issued final decision documents for these new and reissued

NWPs. These final decision documents are available at www.regulations.gov at docket number COE-2020-0002.

The 40 existing NWPs published in the December 27, 2021, final rule replace the 2017 versions of these NWPs. The 2017 versions of NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49, 53, and 54 expire on February 24, 2022.

The NWP general conditions and definitions that were issued in the final rule that was published in the January 13, 2021, issue of the Federal Register (86 FR 2744) apply to the 40 reissued NWPs and the new NWP 59 that were published in the Federal Register on December 27, 2021.

With the publication of this Federal Register notice, Corps divisions will begin finalizing regional conditions for these 41 NWPs. Division Engineers will prepare supplemental documentation to address decisions concerning the addition of regional conditions to the 41 NWPs. Regional conditions will provide additional protection for the aquatic environment, and will help ensure that the NWPs authorize only those activities that have no more than minimal adverse environmental effects. Regional conditions will help ensure protection of high value waters within Omaha District.

Corps divisions and districts will also begin determining which conditions for water quality certifications issued by states, tribes, and EPA for the issuance of these 41 NWPs become regional conditions of these NWPs. Water quality certification regional conditions will be announced in a future public notice issued by the Omaha District.

The December 27, 2021, Federal Register notice is available for viewing at https://www.federalregister.gov/documents/2021/12/27/2021-27441/reissuance-and-modification-of-nationwide-permits

The January 13, 2021, Federal Register notice is available for viewing at: https://www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits 

As an alternative, interested parties can access the December 27, 2021, and January 13, 2021, final rules and related documents at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/

Omaha District NWP information can be found at: https://www.nwo.usace.army.mil/Missions/Regulatory-Program/Nation-Wide-Permit-Information/

POINT OF CONTACT: If you have questions or need additional information please contact the project manager, Jeremy Grauf via email at Jeremy.Grauf@usace.army.mil or by phone at (402)-995-2451.

On 18 November 2021, the U.S. Environmental Protection Agency and the Department of the Army (“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 of 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 to “waters of the United States” 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 implementation of WOTUS and future regulatory actions.

In developing the proposed rule, EPA and the Army reviewed and considered the extensive feedback and recommendations the agencies received from states, tribes, local governments, and stakeholders throughout consultations and pre-proposal meetings and webinars.

The agencies’ press release for the 18 November 2021 announcement is available at https://www.epa.gov/wotus/revising-definition-waters-united-states .

2 November 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). 

Beginning March 18, 2020, the USACE Omaha District’s Regulatory Branch began utilization of telework for all staff.  Telework will continue for an undetermined amount of time.  During this period Regulatory personnel will be working from home utilizing alternative technology to access work files and communicate via email.  Personnel have received guidance to evaluate risk involved with conducting local travel to perform site visits, and when asked to participate in interagency and applicant/consultant meetings.  They have also received direction to remain aware of and adhere to local/municipality and state proclamations regarding participation in gatherings and meetings and exercise flexibility in methods of participation for meetings that USACE normally hosts.

To ensure the continued delivery of the nation’s Regulatory Program, additional flexibility to standard requirements will be implemented.  Electronic submittals and signatures will be utilized when possible.  Also, virtual meeting capabilities, such as webinars or use of Skype, will be used in certain instances.   Applicants, resource agencies and the general public should continue to submit information via previously utilized methods such as mail, email and telephonic contact.  Please be aware that there will be limited to no personnel in any of the offices and the best form of contact at this time is via email.  We realize that this will impact all work products that are currently being evaluated by the Omaha District, but please understand that we are working to identify all strategies to make this impact minimal while doing our part to keep the public and our workforce safe.  This announcement will be periodically updated as procedures and strategies are identified and implemented as we work through these challenging times, so please check back regularly.

Please go to your respective state’s website for instructions on submitting documents electronically:

Colorado - Email: DenverRegulatoryMailbox@usace.army.mil

Montana - Email: Montana.Reg@usace.army.mil

Nebraska - Email: NE404Reg@usace.army.mil

North Dakota - Email: CENWO-OD-RND@usace.army.mil

South Dakota - Email: SDRegulatoryMailbox@usace.army.mil

Wyoming - Email: Wyoming.Reg@usace.army.mil

Project Description: The flooding event of 2019 was caused by rapid snowmelt due to warmer temperatures with increased amounts of rainfall all on top of frozen saturated lands. This in turn produced high runoff and increased flows and stages south of Omaha on the Missouri River in the proximity of and downstream of the confluence of the Platte River. The Main Ditch 6 Levee was not designed to protect the City of Hamburg from direct Missouri River flooding and the Ditch 6 Levee was overtopped, flooding a portion of Hamburg. After the initial flooding subsided, additional heavy rains brought a second wave of water through the breeches in the L-575 system the Ditch 6 Levee was overtopped again. The Levee Sponsor degraded the land side of the levee in order to add elevation to the top of the levee. This was done after consultation with the USACE and the USACE acknowledged the validity of the need to degrade the land side of the levee in order to add elevation to the top of the levee. Soil from the landside slope, toe, and right-of-way was pushed to the top of the levee to increase the levee height. The landside portion of the levee has been altered and is noted as a loss of critical levee section.