Regulatory Branch

The Department of the Army Regulatory Program is one of the oldest in the Federal Government. Initially it served a fairly simple, straightforward purpose: to protect and maintain the navigable capacity of the nation's waters. Time, changing public needs, evolving policy, case law and new statutory mandates have changed the complexion of the program, adding to its breadth, complexity and authority.

The Regulatory Program is committed to protecting the Nation's aquatic resources, while allowing reasonable development through fair, flexible and balanced permit decisions. The Corps evaluates permit applications for essentially all construction activities in the Nation's waters, including wetlands.

Regulatory Announcement

30 July 2021, the U.S. Environmental Protection Agency and Department of the Army (the agencies) announced upcoming community engagement on the agencies’ plans to write a new definition of “waters of the United States” (WOTUS) under the Clean Water Act.  The announcement is available at https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states .

EPA and Army have stated that it is their intent to provide certainty by developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities and economies, while supporting agriculture and other industries.

The announcement marks a key step in the agencies’ efforts to write a new rule to define WOTUS.  EPA and Army have stated that it is their intent to conduct this rulemaking by following science and the law, emphasizing implementation, and working collaboratively with states, tribes, local governments, and stakeholders.

The engagement opportunities include an opportunity for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on the agencies’ rulemaking process. In addition, the agencies are initiating Federalism and Tribal consultations for the foundational rule that would restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both anticipated rulemakings.

Additionally, the agencies plan to convene regionally focused and inclusive roundtables during the upcoming fall and winter. These roundtables will allow a full spectrum of stakeholders to engage and discuss their experience with definitions of WOTUS—including what has worked and what has not. The roundtables will provide opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.

EPA and Army have updated their WOTUS website to include registration links for the August public meetings and the Federal Register Notice and a link to the press release. For more information about the agencies’ outreach and engagement plans, and more generally on the definition of “waters of the United States,” visit https://www.epa.gov/wotus. To register for public meeting visit https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.

Please contact CWAwotus@epa.gov with any questions, comments, or feedback.

For all press inquiries please contact EPA’s press office.

On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 2744) announcing the reissuance of 12 existing nationwide permits (NWPs) and four new NWPs (NWP 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 55, 56, 57, and 58) as well as the reissuance of NWP general conditions and definitions with some modifications. The Northwestern Division Engineer approved the Omaha District regional conditions on February 23, 2021. These 16 NWPs will go into effect on March 15, 2021 and will expire on March 14, 2026. 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/

Omaha District Pre-recorded Outreach Presentation: https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/5072

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 the Department of the Army’s Navigable Waters Protection Rule (NWPR):  Definition of “Waters of the United States” became effective on June 22, 2020 in 49 states and all US territories. A preliminary injunction has been granted for the state of Colorado.  Federal jurisdiction in Colorado will be determined using the 2019 Rule (the recodification of the 1986 Regulations) and associated 2003/2008 (SWANCC/Rapanos) guidance documents.  The NWPR establishes the scope of federal regulatory authority under the Clean Water Act.  The NWPR includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated. 

The Federal Register notice is available at https://www.federalregister.gov/documents/2020/04/21/2020-02500/the-navigable-waters-protection-rule-definition-of-waters-of-the-united-states.  Additional information about the rule can be found on the EPA’s website at https://www.epa.gov/nwpr.

The U.S. Army Corps of Engineers (Corps), as part of an interagency effort with the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), is announcing the availability of the final 2018 National Wetland Plant List (NWPL). The Federal Register Notice for the 2018 NWPL update can be found here: https://www.govinfo.gov/content/pkg/FR-2020-05-18/pdf/2020-10630.pdf.

The NWPL provides plant species 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 May 18, 2020 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 http://wetland-plants.usace.army.mil/.  State, regional, and national lists can also be downloaded from this site.

The U.S. Army Corps of Engineers (Corps), as part of an interagency effort with the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), is announcing the availability of the final 2018 National Wetland Plant List (NWPL). The Federal Register Notice for the 2018 NWPL update can be found here: https://www.govinfo.gov/content/pkg/FR-2020-05-18/pdf/2020-10630.pdf.

The NWPL provides plant species 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 May 18, 2020 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 http://wetland-plants.usace.army.mil/.  State, regional, and national lists can also be downloaded from this site.

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

Regulatory News Releases

Public notice for permit application for compensatory mitigation bank near Bozeman, Montana
7/23/2021
Missoula, Mont. –The U.S. Army Corps of Engineers, Omaha District is evaluating a request by the Sacajawea Audubon Society to review the feasibility of a new compensatory mitigation bank, known as the...