US Army Corps of Engineers
Omaha District

South Dakota 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.

28563 Powerhouse Road | Pierre | South Dakota | 57501 | Ph: 605-224-8531 | Fax: 605-224-5945

Regulatory Announcement

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On January 6, 2017, the U.S. Army Corps of Engineers (Corps) published the notice in the Federal Register announcing the reissuance of all existing nationwide permits (NWPs), general conditions, and definitions with some modifications.  The NWPs became effective on March 19, 2017, and will expire on March 18, 2022.

Certain NWPs require project proponents to notify Corps district engineers of their proposed activities prior to conducting regulated activities, so that the district engineers can make case-specific determinations of NWP eligibility.  The notification takes the form of a pre-construction notification (PCN).  The purpose of a PCN is to give the district engineer an opportunity to review a proposed NWP activity (generally 45 days after receipt of a complete PCN) to ensure that the proposed activity qualifies for NWP authorization.  More information on when an activity requires a PCN can be found in the Federal Register Notice:

https://www.govinfo.gov/content/pkg/FR-2017-01-06/pdf/2016-31355.pdf

In some Corps districts, division engineers have imposed regional conditions on certain NWPs to help ensure that those NWP only authorize activities with no more than minimal adverse environmental effects in a particular region.  Those regional conditions may add PCN requirements to one or more NWPs.  Prospective permittees that want to use one or more NWPs to authorize their proposed activities should contact the appropriate Corps district or view its web page to determine if there are additional NWP activities that require PCNs on a regional basis.

To assist applicants in providing complete information needed for NWP evaluations, a PCN application form was created and approved by the Office of Management and Budget (OMB) in February of 2019.  The use of this form is strongly encouraged to assist Corps districts with a streamlined evaluation of an applicant’s proposal.  Having a complete application form will reduce the need for additional information requests and should reduce the amount of time it takes the district engineer to conclude his or her review.  Instructions on how to complete the PCN application form can be found at the end of the form.

Please note not all Corps Regulatory offices will use this form, as some districts have joint federal and state application reviews and use forms created specifically for that purpose.  Please refer to your local Corps district office webpage for more information on which form should be used.  A map to help you find your local Corps office website can be found at:

http://regulatory-ops.s3-website-us-east-1.amazonaws.com/

Information on the preferred form to use will be noted on the districts’ website.  The Corps can still accept information provided on other forms, however use of the PCN form for NWPs is strongly encouraged and will expedite the evaluation of your application.

The link to the ENG 6082 form has been updated and can be found at:  ENG 6082 Form download.

On September 12, 2019, the Environmental Protection Agency and Department of the Army (the agencies) signed a final rule to repeal the 2015 Clean Water Rule (2015 Rule) and re-codify the regulatory text defining "waters of the United States" (WOTUS) that existed prior to the 2015 Rule. This action will, when effective, provide regulatory certainty as to the definition of “waters of the United States” in light of ongoing litigation over the 2015 Rule. This final rule will be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice.

This final rule follows the February 28, 2017, Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." The February Order states that it is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution. To meet these objectives, the agencies have followed a two-step rulemaking process.  Today’s final rule is the first step of that process (Step 1 Final Rule).  It was first proposed on July 27, 2017, with a supplemental proposal on June 29, 2018, and received 770,000 public comments.  The Step 1 Final Rule provides regulatory certainty by removing the patchwork of regulations that existed across the country as a result of various judicial decision enjoining the 2015 Rule, and it reestablishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 Rule, which is more familiar to the agencies, States, Tribes, local governments, regulated entities, and the public.

The Step 1 Final Rule provides the aforementioned regulatory certainty while the agencies engage in the second step of rulemaking to revise the definition of WOTUS.  The second step, or the Step 2 Proposed Rule, was published in the Federal Register on February 14, 2019, and the public comment period closed on April 15, 2019.  The agencies are currently reviewing over 600,000 public comments before taking final action.

More information regarding the WOTUS rulemaking can be found at EPA’s website:  https://www.epa.gov/wotus-rule.  If you have specific questions regarding this Step 1 Final Rule, please contact a local Corps District office or EPA Regional office. 

The US Army Corps of Engineers, South Dakota Regulatory Office, through the Regulatory Program, administer and enforce Section 404 of the Clean Water Act in South Dakota 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.