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Announcements

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. 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.

 

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.

 

Regulatory and Permits COVID-19 Changes

EFFECTIVE IMMEADIATELY THE NEW YORK DISTRICT REGULATORY BRANCH WILL ONLY BE ACCEPTING PERMIT APPLICATIONS ELECTRONICALLY THROUGH THE FOLLOWING EMAIL ADDRESS: CENAN-R-Permit-App@usace.army.mil. For specific details on this new process please read the Special Public Notice titled " REGULATORY OPERATIONS IN RESPONSE TO COVID-19 AND REQUEST FOR ELECTRONIC APPLICATION SUBMITTAL"  within the Announcements page of our Regulatory page at: https://www.nan.usace.army.mil/Missions/Regulatory/Non-Project-Specific-Special-Public-Notices/

 

Regulatory Branch

Regulatory Branch

The U.S. Army Corps of Engineers has been involved in regulating activities in the nation's waters since 1890. These include issuing permits related to waters of the United States, which are considered to include all surface waters such as all navigable waters and their tributaries, all wetlands adjacent to these waters, and all impoundments of these waters. Water is one of our nation's most valuable resources. It is becoming increasingly important that we protect the quality of our inland waters and wetlands for the use and benefit of future generations. A significant component of the Corps of Engineers' Regulatory program is to ensure that the physical, biological, and chemical quality of our nation's water is protected from irresponsible and unregulated discharges of dredged or fill material that could permanently alter or destroy these valuable resources. If you are planning work in a river, stream, wetland or pond, a Corps permit may be required.

History

The U.S. Army Corps of Engineers has been regulating activities in the Nation's waters since the late 1800's. Until the 1960's, the primary purpose of the regulatory program was to protect navigation. Since then new laws and court decisions have broadened the program. The regulatory program now considers the full public interest for both the protection and utilization of water resources.

Statutory Authority

The following laws define the regulatory authorities and responsibilities of the Corps of Engineers:

Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the obstruction or alteration of navigable waters of the United States without a permit from the Corps of Engineers.

Typical activities requiring Section 10 permits are:

Construction of piers, wharves, bulkheads, dolphins, marinas, ramps, floats, intake structures, and cable or pipeline crossings.
Dredging and excavation Section 404 of the Clean Water Act (33 U.S.C. 1344) prohibits the discharge of dredged or fill material into waters of the United States without a permit from the Corps of Engineers. The phrase "waters of the United States" includes navigable waters, but also includes non-navigable waterbodies, perennial and intermittent streams, wetlands, mudflats, and ponds.

Typical activities, although not entirely inclusive, that would require Section 404 permits are the depositing of fill or dredged material in waters of the U.S., for such things as:

Utility installations, stream relocations or culverting
Site development fills for residential, commercial, or recreational developments
Construction of revetments, groins, breakwaters, levees, dams, dikes, and weirs
Placement of riprap and road fills

Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) authorizes the Corps of Engineers to issue permits for the transportation of dredged material for the purpose of disposal within ocean waters.

Other laws which may also affect the processing of your application are described below.

Section 401 of the Clean Water Act requires applicants to obtain a certification or waiver from the New York State Department of Environmental Conservation for any activity that may result in a discharge of a pollutant into waters of the United States, including any dredged or fill materials. This agency reviews the effect on water quality standards.

Section 307(c) of the Coastal Zone Management Act of 1972, as amended, requires applicants to obtain a certification or waiver that the activity complies with the state's coastal zone management program for activities affecting a state's coastal zone.
 

Permits

Types of permits include Individual, Nationwide and Regional. Contact the Corps of Engineers for proposed work in waters in your area. Exemptions, nationwide, regional and individual permit requirements will be reviewed. Discussing all information prior to application submittal will aid in your application being processed more efficiently.

Depending upon the type of and amount of proposed impacts within waters of the United States, including wetlands, the applicant may need to propose compensatory mitigation to offset adverse impacts to waters.

You can review the information and links on this Web site, including our listing of monthly Permit Decisions, to familiarize yourself with the issues and what may be required for your particular permitting process. For more information on the Corps of Engineers Regulatory Program and avatars to assist in completing the permit application, visit the Corps of Engineers Headquarters Regulatory website.