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. Today, USACE regulates structures and work in navigable waters of the U.S. under Sections 9 and 10 of the Rivers and Harbors Act of 1899, discharges of dredged or fill material in waters of the U.S. (including jurisdictional wetlands) under Section 404 of the Clean Water Act, and the transportation of dredged material for the purpose of ocean disposal under Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972.
The Corps balances the reasonably foreseeable benefits and detriments of proposed projects, and makes permit decisions that recognize the essential values of the Nation's aquatic ecosystems to the general public, as well as the property rights of private citizens who want to use their land. During the permit process, the Corps considers the views of other Federal, state and local agencies, interest groups, and the general public. The results of this careful public interest review are fair and equitable decisions that allow reasonable use of private property, infrastructure development, and growth of the economy, while offsetting the authorized impacts to the waters of the U.S. The Corps strives to make its permit decisions in a timely manner that minimizes impacts to the regulated public.
For projects determined to have unavoidable impacts to waters of the U.S. after an applicant has demonstrated avoidance and minimization to the maximum extent practicable, the Corps may require compensatory mitigation to replace lost aquatic function. Mitigation is frequently provided through a federally-approved compensatory mitigation bank.
Enforcement action may be taken on unauthorized activities in waters of the U.S. and violations of issued permit conditions. The assistance of members of the public and other interested Federal, State and local agencies for reporting a suspected violation is encouraged.
The Vicksburg District Regulatory team continues to work daily to assure that the Nation’s aquatic resources are protected while allowing reasonable development through fair, flexible, and balanced permit decisions.
30 DEC 2022 - EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections
The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule establishing a durable definition of “waters of the United States” (WOTUS) to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity. The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.
Click here to to read the full press release and to access the rule and related materials.
The agencies will host a public final rule overview webinar on January 19, 2023, from 12pm – 1pm Eastern Time. Note that registration capacity is limited, but the webinar will be recorded and posted on EPA’s website after the event. Register for the final rule overview webinar.
1 DEC 2022 - Release of Interim Draft of the National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams
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 email@example.com.
25 July 2022 – Payment of Department of the Army Permit Fees via Pay.Gov
Applicants are now able to pay Department of the Army permit fees online at pay.gov instead of writing and mailing a check or money order. This convenient option allows for multiple payment methods (bank account, Amazon account, PayPal, debit or credit card). The direct link for making Department of the Army permit fee payments on pay.gov is https://www.pay.gov/public/form/start/996412796. Click here for a pay.gov payment walk-through which explains the process.
9 June 2021 - EPA, Army Announce Intent to Revise Definition of Waters of the United States
The Environmental Protection Agency and Department of the Army have announced their intent to revise the definition of “waters of the United States” (WOTUS), to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The EPA/Army press release can be accessed here: https://www.epa.gov/newsreleases/epa-army-announce-intent-revise-definition-wotus.
The agencies’ new regulatory effort will be guided by the following considerations: - Protecting water resources and our communities consistent with the Clean Water Act.
- The latest science and the effects of climate change on our waters.
- Emphasizing a rule with a practical implementation approach for state and Tribal partners.
- Reflecting the experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, Tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.
The agencies are committed to meaningful stakeholder engagement to ensure that a revised definition of waters of the United States considers essential clean water protections, as well as how the use of water supports key economic sectors. Further details of the agencies’ plans, including opportunity for public participation, will be conveyed in a forthcoming action. To learn more about the definition of waters of the United States, visit https://www.epa.gov/wotus.
30 July 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.
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.
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.
5 January 2022 – Navigable Waters Protection Rule Vacatur
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.