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After careful consideration, the U.S. Environmental Protection Agency and the Department of the Army have rescinded the memorandum “U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) Process for Elevating and Coordinating Specific Draft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.”
November 2, 2021 - Updated National Wetland Plant List available in the Federal Register
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).
July 30, 2021 – EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States
The Environmental Protection Agency (EPA) and the Department of the Army (Army) have announced plans for upcoming community engagements to inform their efforts to revise the definition of “waters of the United States” (WOTUS). EPA and Army have stated a commitment to developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries.
EPA and Army are announcing a series of engagement opportunities, including an opportunity for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on the rulemaking. In addition, the agencies are initiating Federalism and Tribal consultations for the foundational rule. The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both rulemakings.
The full announcement can be found here: https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states.
For more information on submitting written recommendations or to register for the public meetings, see www.epa.gov/wotus.
June 25, 2021 – Issuance of the Pennsylvania State Programmatic General Permit – 6.
The U.S. Army Corps of Engineers, Baltimore, Philadelphia and Pittsburgh Districts announced the issuance of the Pennsylvania State Programmatic General Permit (PASPGP-6) on June 25, 2021. PASPGP-6 will be effective July 1, 2021, expires June 30, 2026, and replaces the PASPGP-5 streamlined review process in Pennsylvania, which expires on June 30, 2021. To view the Public Notice, click here: https://www.lrp.usace.army.mil/Missions/Regulatory/Public-Notices/ To view the PASPGP-6 click here: https://www.lrp.usace.army.mil/Missions/Regulatory/Forms-and-Publications/
National Wetland Plant List (NWPL) 2020 Update
24 March 2021 - The U.S. Army Corps of Engineers (USACE), 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 draft changes to the 2020 NWPL and its web address to solicit public comments. The public now has the opportunity to comment on the proposed changes to wetland indicator status ratings for five plant species in select regions and the addition of 22 new plant species to the NWPL. The Federal Register Notice (FRN) for the 2020 NWPL update can be found here: https://www.govinfo.gov/content/pkg/FR-2021-03-24/pdf/2021-05989.pdf. The public comment period ends on 24 May 2021.
The 27 species and their draft 2020 wetland ratings by region, as well as the FRN, can be viewed at the NWPL homepage, https://cwbi-app.sec.usace.army.mil/nwpl_static/v34/home/home.html, under “2020 NWPL Update Information.” A link to provide general or species-specific comments is also available at this location. Users are encouraged to submit literature citations, herbaria records, experiential references, monitoring data, and other relevant information. Specific knowledge of, or studies related to, individual species are particularly helpful. Commenters should use their regional botanical and ecological expertise, field observations, reviews of the most recent indicator status information, appropriate botanical literature, floras, herbarium specimens with notation of habitat and associated species, habit data, relevant studies, and historic list information. Providing ratings without supporting documentation or information is not recommended. All submitted comments and information will be compiled and sent to the National Panel for their consideration.
USACE is also seeking comments regarding the administrative change to the South Pacific Islands subregion and the NWPL update process. Detailed information on the update process, protocol, and technical issues can be found in the following documents (available on the “NWPL Publications” web page referenced above):
- Lichvar, Robert W. and Minkin, Paul. Concepts and Procedures for Updating the National Wetland Plant List. Sept 2008. ERDC/CRREL TN-08-3
- Lichvar, Robert W. and Gillrich, Jennifer J. Final Protocol for Assigning Wetland Indicator Status Ratings during National Wetland Plant List Update. Sept 2011. ERDC/CRREL TN-11-1
USACE administers the NWPL for the United States and its territories. 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. Additions or deletions to the NWPL represent new records, range extensions, nomenclatural and taxonomic changes, and newly proposed species. The latest review process began in 2020 and included review by Regional Panels and the National Panel.
21 APR 2020 - Publication of the Navigable Waters Protection Rule in the Federal Register
EPA and Army Publish the Navigable Waters Protection Rule - The Environmental Protection Agency (EPA) and the Department of the Army’s Navigable Waters Protection Rule: Definition of “Waters of the United States” was published in the Federal Register. This final rule establishes the scope of federal regulatory authority under the Clean Water Act. The Navigable Waters Protection Rule includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated. The final rule will become effective on June 22, 2020. The published version is 93 pages, and the citation is: 85 FR 22250. 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 website at https://www.epa.gov/nwpr.
29 May 2020 - National Wetland Plant List Update
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.
12 September 2019 - EPA and Army sign final rule to repeal the 2015 Clean Water Rule
EPA and Army announced today the signing of a final rule (Step 1 Final Rule) to repeal the 2015 Clean Water Rule and restore the regulatory regime that existed prior to the 2015 Rule. Today's Step 1 Final Rule is in keeping with President Trump’s Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” Prior to today's rule, a patchwork of regulations existed across the country as a result of various judicial decisions enjoining the 2015 Clean Water Rule. Today's final rule reestablishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 Clean Water Rule, which many regulatory agencies, States, Tribes, local governments, regulated entities, and the public are familiar with. This final rule also provides regulatory certainty, while the agencies engage in the second step of rulemaking (Step 2 Proposed Rule) to revise the definition of "waters of the U.S." The Step 2 Proposed Rule was published in the Federal Register on February 14, 2019, and public comments were received through April 15, 2019. EPA and Army are currently reviewing more than 600,000 comments received before taking final action. For more information on the "Waters of the U.S" rulemaking, please visit http://www.epa.gov/wotus-rule. For questions about a pending jurisdictional determination or permit, we ask that you contact your local U.S. Army Corps of Engineers Regulatory Office. Office information can be found at http://regulatory-ops.s3-website-us-east-1.amazonaws.com/