Nebraska Regulatory Office

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.

8901 South 154th Street | Omaha | Nebraska | 68138-3635 | Ph: 402-896-0896 | Fax: 402-896-0997

Email: NE404Reg@usace.army.mil

Regulatory Announcement

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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.

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.

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). 

The Nebraska Regulatory Office of the U.S. Army Corps of Engineers' Omaha District has been working to be more responsive to the needs of the public. For the Regulatory Program, we know there is great interest in allowing information associated with pre-construction notifications, permit applications, and other requests in a digital format, instead of paper.

In light of the COVID-19 pandemic, the Nebraska Regulatory Office strongly encourages all submittals be provided in digital form, eliminating any need to send a paper copy. The Nebraska Regulatory Office has been authorized and encouraged to telework from home throughout this crisis to help slow the spread of the virus while continuing to execute the regulatory program and provide customer service. Submitting requests to our office electronically avoids the necessity of handling paper documents, eliminates any possibility of pathogen transmittals, and allows our regulatory project managers electronic access to the requests while teleworking via the internet.

The Nebraska Regulatory Office will accept electronic submittals during the COVID-19 pandemic. If you are submitting information associated with a new request, such as a permit application or pre-construction notification, please submit it to NE404Reg@usace.army.mil for initial in-processing. (NOTE: Emails including attachments cannot exceed 40Mb; attachments should be clearly labeled, and consolidated into one PDF when possible).

If you require assistance with an active request, we encourage you to send digital files directly to the project manager assigned to the action. We also recommend that email is the best option for communicating with the project manager at this time since they may be teleworking. If you do not know who is assigned to your action, please send your request to our general email box, or call our office at 402-896-0896.

We will continue to accept paper copies of your requests if you are unable to submit them electronically. However, evaluating your requests may be delayed until someone in the office is able to scan and convert your paper documents to digital documents available to the assigned project manager.

Further information and instructions regarding submitting requests electronically can be found at: https://www.nwo.usace.army.mil/Missions/Regulatory-Program/Nebraska/

If you have any questions, please contact the Nebraska Regulatory Office at 402-896-0896 or send an email to NE404Reg@usace.army.mil

U.S. ARMY CORPS OF ENGINEERS – Omaha District
Nebraska Regulatory Office, 8901 South 154th Street, Suite 2, Omaha, NE 68138.
https://www.nwo.usace.army.mil/Missions/Regulatory-Program/Nebraska/

The US Army Corps of Engineers, Nebraska Regulatory Offices, through the Regulatory Program, administer and enforce Section 404 of the Clean Water Act in Nebraska for the Omaha District. Under CWA Section 404, a permit is required for the discharge of dredged or fill material into waters of the United States. Many waterbodies and wetlands in the nation are waters of the United States and are subject to the Corps' regulatory authority.