12 Sep 2019-CLEAN WATER ACT FINAL RULE REPEALING THE 2015 CLEAN WATER RULE AND RE-CODIFYING THE PREVIOUS DEFINITION OF THE “WATERS OF THE U.S.”
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.
07 August 2019 - Regulatory Guidance Letter 19-02 (Timeframes for Clean Water Act Section 401 Water Quality Certifications and Clarification of Waiver Responsibility) The Assistant Secretary of the Army for Civil Works has announced the issuance of the USACE Regulatory Guidance Letter (RGL) 19-02. This RGL provides guidance to USACE district engineers to clarify timeframes improve efficiency for receiving Section 401 Water Quality Certification decisions.
29 July 2019 - Definition of "Waters of the United States": Rule Status and Litigation Update
In February 2018, the U.S. Environmental Protection Agency (EPA) and Department of the Army (Army) (“the agencies”) finalized a rule that would establish an applicability date of February 2020 for the 2015 Rule defining “waters of the United States.” Since then, the U.S. District Courts for the District of South Carolina and the Southern District of Washington enjoined and vacated the 2018 Applicability Date Rule.
The agencies are disappointed by the district courts’ rulings, which leave a confusing patchwork of federal regulations in place across the country. Rather than continuing to litigate the Applicability Date Rule, however, the agencies have decided to focus on the rulemaking actions underway.
Pursuant to the South Carolina district court’s order, the 2015 Rule is in effect in 22 states, the District of Columbia, and the U.S. territories. The agencies recognize the uncertainty this decision has created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis regarding which rules are in place in which states. If a state, tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or the EPA.
17 June 2019 - Public comment period on National Wetland Plant List for 2018
The U.S. Army Corps of Engineers (USACE) as part of an interagency effort is accepting comments on the draft biennial update to the National Wetland Plant List (NWPL) for 2018. The draft update was published in the June 10, 2019 Federal Register and allows for public comment on the proposed update or addition of wetland indicator status ratings for 20 plant species in select USACE wetland regions. Input in the form of data, comments, literature references, or field experiences, will be used to clarify the status of the species reviewed for this update, as well as public input on the NWPL process. The 20 reviewed species and their draft 2018 wetland ratings by region, as well as the Federal Register notice, can be viewed at the NWPL homepage under "2018 NWPL Update Information." Comments and information received on or before August 9, 2019 will be compiled and sent to the NWPL National Panel for consideration.
25 February 2019 - Regulatory Guidance Letter 19-01 (Mitigation Bank Credit Release Schedules and Equivalency in Mitigation Bank and In-Lieu Fee Program Service Areas) The Assistant Secretary of the Army for Civil Works has announced the issuance of the USACE Regulatory Guidance Letter (RGL) 19-01. This RGL provides guidance to USACE district engineers on credit release schedule for mitigation banks and on using consistent criteria to establish service areas for both mitigation banks and in-lieu fee programs.
14 February 2019 - EPA and Army publish proposed revised "waters of the United States" definition
The U.S. Environmental Protection Agency (EPA) and the Department of the Army announced today the publishing in the Federal Register of the proposed new definition of "waters of the United States" that clarifies federal authority under the Clean Water Act. The notice is available at https://www.federalregister.gov/documents/2019/02/14/2019-00791/revised-definition-of-waters-of-the-united-states. The agencies' proposal is the second step in a two-step process to review and revise the definition of "waters of the United States" consistent with the February 2017 Presidential Executive Order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." The publishing of the proposal and outreach efforts were delayed due to the lapse in appropriations for EPA. Today's notice begins a 60-day public comment period that will close on April 15, 2019. EPA and the Army will hold an informational webcast on February 14, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on February 27-28, 2019. Information, including supporting analyses and fact sheets, are available at: https://www.epa.gov/wotus-rule/step-two-revise and https://www.epa.gov/wotus-rule.
Flood Recovery and Repair Activities-Special Public Notice-In response to the severe flooding and other storm related damages in the Fort Worth District. Municipalities and owners of damaged property wanting to conduct repair activities resulting in dredging or placing fill in waters of the United States, including rivers, lakes, streams, creeks, and wetlands should review the public notice. Many of the permits have scopes of work and thresholds which allow you to accomplish your project without delay or waiting for an authorization.
The National Technical Committee for Hydric Soils has updated the Field Indicators of Hydric Soils in the United States to version 8.2 in electronic format at http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_053171.pdf For more information regarding hydric soils, go to http://www.nrcs.usda.gov/wps/portal/nrcs/main/soils/use/hydric/
Hydrologic Modeling Guidelines Technical Report and Checklist
This Technical Report presents technical information supporting development of a set of Hydrologic Modeling Guidelines (HMGs) for the U.S. Army Corps of Engineers Fort Worth District Regulatory Division (Corps). The HMGs are designed for discretionary application by Corps project managers and water supply permit Applicants to assist in identifying hydrologic analysis and modeling needs and requirements associated with water supply and management permit applications, with a focus on the RiverWare modeling platform for cases that require hydrologic modeling. The HMGs are intended to add predictability and transparency to the aspects of the permitting process related to hydrologic modeling but are not required to be used by Applicants or Corps regulators. These guidelines have been developed primarily for the Corps’ Regulatory Program’s (Regulatory) project managers who have limited experience associated with the topics covered. Report
On 6 June, 2016, the USEPA signed an Administrative Order to Chesapeake Operating, LLC citing violations of the Clean Water Act resulting from the dredged and fill activities involving wetlands and an intermittent stream just west of Crystal City, Zavala County, Texas. A Consent on Agreement and Final Order between EPA and Chesapeake Operating, LLC to settle violation of Section 301(a) of the Act resulted in a civil penalty. Chesapeake Operating, LLC, will also restore the functions of the wetland and stream. The work was discovered by the Fort Worth Regulatory Branch and referred to USEPA.
On 18 March, 2015, the USEPA signed a Consent Agreement and Final Order with CTMGT Tuberville, LLC assessing a Class I civil penalty under Section 404 of the Clean Water Act (CWA) for unauthorized work and a violation of permit conditions on a subdivision in Denton, Texas. The work was discovered by the Regulatory Branch and referred to USEPA as a knowing and willful violation. In addition to the fine, the permittee was ordered to restore the area within permit conditions.