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17 November, 2021 – Rescission of the 30 June 2020 NWPR Memo, “EPA and U.S. Army Corps of Engineers Process for Elevating and Coordinating Specific Draft Determinations under the Clean Water Act

USACE Regulatory
Published Nov. 17, 2021

After careful consideration, the U.S. Environmental Protection Agency and the Department of the Army have rescinded the memorandum “U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) Process for Elevating and Coordinating Specific Draft Determinations under the Clean Water Act (CWA),” signed by EPA on June 26, 2020 and Army on June 30, 2020. The memorandum established a process by which the Corps and EPA (together, the agencies) intended to elevate to their headquarters for coordination certain case-specific and stand-alone CWA determinations under paragraph (a)(1) of the Navigable Waters Protection Rule (NWPR). The NWPR did not change the definition of traditional navigable waters and retained the agencies’ longstanding “guidance on determining whether a water is a ‘traditional navigable water’ for purposes of the Rapanos Guidance, the Clean Water Act (CWA), and the agencies’ CWA implementing regulations.” However, by establishing new procedures for one category of traditional navigable waters, the 2020 elevation memorandum created an unnecessary extra step for making traditional navigable waters determinations that the agencies have been making for many years. Therefore, the agencies are rescinding that memorandum, and retaining their legal memorandum on traditional navigable waters, which has remained unchanged since 2007. The legal memorandum, “Legal Definition of ‘Traditional Navigable Waters,’” can be found at https://www.epa.gov/wotus/legal-definition-traditional-navigable-waters.”