The Environmental Protection Agency and the Department of the Army’s Navigable Waters Protection Rule (NWPR):  Definition of “Waters of the United States” became effective on June 22, 2020 in 49 states and all US territories. A preliminary injunction has been granted for the state of Colorado.  Federal jurisdiction in Colorado will be determined using the 2019 Rule (the recodification of the 1986 Regulations) and associated 2003/2008 (SWANCC/Rapanos) guidance documents.  The NWPR establishes the scope of federal regulatory authority under the Clean Water Act.  The NWPR includes four simple categories of jurisdictional waters and provides specific exclusions for many water features that traditionally have not been regulated.  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’s website at https://www.epa.gov/nwpr

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.

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.

The Natural Resources Conservation Service (NRCS) and the Deputy Assistant Secretary of the Army have provided written notice to rescind the 2005 joint memorandum titled "Guidance on Conduction Wetland Determinations for the Food Security Act of 1985 and Section 404 of the Clean Water Act".  This rescission is effective immediately. This rescission does not alter the roles or responsibilities of the Agencies under their respective statutory and regulatory authorities. The Agencies will continue their practice of informing landowners that wetland delineations (performed by the Corps) and determinations (performed by the NRCS) may not be valid for FSA or CWA requirements, respectively.  The Agencies intend to issue new guidance on this topic in the near future.

This guidance applies to all wetland delineation reports submitted in Idaho for concurrence by the Corps of Engineers, Walla Walla District, Regulatory Division. The District has established this guidance to ensure consistency and accuracy in delineation reports and to aid the District in the verification of a delineation report.

Please follow the link below for more information and to view the guidance documents and attachments.

https://www.nww.usace.army.mil/Business-With-Us/Regulatory-Division/Public-Notices/Article/1885474/special-public-notice/ 

On February 22, 2019, the U.S. Army Corps of Engineers (Corps) issued Regulatory Guidance Letter (RGL) 19-01 “Mitigation Bank Credit Release Schedules and Equivalency in Mitigation Bank and In-Lieu Fee Program Service Areas.” Developed in collaboration with the U.S. Environmental Protection Agency, RGL 19-01 provides guidance to District Commanders on two issues relating to that authority: credit release schedules for mitigation banks and consistency in establishing service areas for mitigation banks and in-lieu fee programs.

In 2015, the Corps conducted an analysis of the implementation of the 2008 Mitigation Rule. The analysis compared the processing timeframes for Department of the Army permits between the use mitigation bank or in-lieu fee credits and permittee-responsible mitigation to meet compensatory mitigation requirements. Permit processing timeframes were reduced by approximately 50 percent with the use of mitigation bank or in lieu fee credits.

Consistent with flexibility within the 2008 Mitigation Rule, RGL 19-01 will provide a substantial benefit to the Nation by facilitating the release of more credits available for sale to permittees shortly after successful construction of a mitigation bank. The Army anticipates that allowing for additional credits for sale will result in mitigation credits be sold at a more competitive, fair and comparable prices.

“Having more credits available for sale to permittees can allow for even more reduced permitting timeframes for the important infrastructure, energy, and other administration priority activities,” said R.D. James, Assistant Secretary of the Army for Civil Works “Homebuilders and many others who need authorization from the Corps for their proposed activities will also benefit from increase in available mitigation credits.”

The credit release is contingent on the bank sponsor successfully constructing the mitigation bank in accordance with the Corps approved mitigation plan and providing sufficient financial assurances that the bank will meet the approved ecological performance standards.

This guidance will benefit the mitigation bankers businesses, the permittees, as well as the aquatic resources. The Army anticipates that improved guidance in releasing mitigation credits will encourage more investment in mitigation banks, thereby improving the quantity and quality of aquatic habitat being restored Nation-wide.

In addition to addressing the credit release schedules for mitigation banks, the RGL also addresses service areas for mitigation banks and in-lieu fee programs. In 2004, Congress mandated that the Corps in developing the 2008 Mitigation Rule to "apply equivalent standards and criteria to each type [on-site, off-site, and in-lieu fee mitigation and mitigation banking] of compensatory mitigation". Therefore, the guidance makes clear that with each District, the Corps should ensure that the same criteria are used to establish similar service areas for mitigation banks and in-lieu fee programs.

To read RGL 19-01, the 2008 Final Mitigation Rule and for more information on the Corps’ Regulatory Program, please go to https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/.