Regulatory Announcements

  • 2 December 2021 - Water Quality Certifications and Corps Permitting

    On October 21, 2021 the U.S. District Court for the Northern District of California issued an order vacating and remanding the Environmental Protection Agency’s 2020 regulations implementing Section 401 of the Clean Water Act.  On November 18, 2021, after a temporary pause on permit decisions reliant on a Section 401 water quality certification or waiver completed under the vacated regulations, Corps districts resumed making decisions on all permit applications and requests for nationwide permit verifications.  As part of that decision making process, districts will coordinate with certifying authorities on water quality certifications that are potentially impacted by the vacatur order.

    Additional information regarding the vacatur can be found on EPA’s website at: https://www.epa.gov/cwa-401/2020-clean-water-act-section-401-certification-rule
     
  • 18 November 2021 - EPA, Army Announce Signing of Proposed Rule to Revise the Definition of Waters of the United States

    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 .

  • 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

    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.”

  • 2 November 2021 – Final 2020 National Wetland Plant List

    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). 

  • 16 September 2021 - Current Implementation of Waters of the United States

    Consistent with the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. 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 CFR 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 rule in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. Therefore, AJDs that were pending on, or received after the court’s decision will be completed consistent with the pre-2015 regulatory regime. AJDs completed prior to the court’s decision remain valid until the expiration date unless one of the criteria for revision is met under RGL 05-02, or the recipient of such an AJD requests that a new AJD be provided pursuant to the pre-2015 regulatory regime.
     

  • 3 September 2021 – Current Implementation of Waters of the United States

    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 and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes 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. Additional information is available on EPA’s website at: https://www.epa.gov/wotus/current-implementation-waters-united-states.

  • 13 January 2021 – Army Corps of Engineers publishes 2021 nationwide permits
    USACE announce today the publication in the Federal Register of the 2021 Nationwide Permits (NWPs) at https://www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits.  The 12 reissued and four new 2021 NWPs in the rule are necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  These 16 NWPs will go into effect on March 15, 2021 and will expire on March 14, 2026.  The 40 existing NWPs that were not reissued or modified by the January 13, 2021, final rule remain in effect. More information on NWPs can be found at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/National-Notices-and-Program-Initiatives/.
     
  • 11 September 2020 - EPA finalized the “Clean Water Act Section 401 Certification Rule”
    On June 1, 2020, EPA finalized the "Clean Water Act Section 401 Certification Rule" to implement the water quality certification process consistent with the text and structure of the CWA. The final rule became effective on September 11, 2020. See Docket ID No. EPA-HQ-OW-2019-0405 for additional information.

  • The final rule is available through the Federal Register website at: https://www.epa.gov/sites/production/files/2020-07/documents/clean_water_act_section_401_certification_rule.pdf

    Additional information is available on the EPA’s website at: https://www.epa.gov/cwa-401/statutory-and-regulatory-requirements-cwa-section-401-certification

  • 22 May 2020 - Final 2018 National Wetland Plant List
    The U.S. Army Corps of Engineers, as part of an interagency effort with the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service and U.S. Department of Agriculture Natural Resources Conservation Service, announce the availability of the final 2018 National Wetland Plant List (NWPL) in the Federal Register at https://www.govinfo.gov/content/pkg/FR-2020-05-18/pdf/2020-10630.pdf.  The 2018 NWPL is effective as of May 18, 2020 and will be used in any wetland delineations performed after this date.  Wetland delineation/determination forms should reference this version of the NWPL.  The 2018 NWPL is also available at http://wetland-plants.usace.army.mil/.  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.

Archive Announcements

Regulatory (Permits)

Man and woman checking soil conditions
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 and navigation capacity, while allowing reasonable development through fair and balanced decisions.  The Corps evaluates permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands.