September 8, 2023: The U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. More information about the conforming rule is available here: https://www.usace.army.mil/Media/Announcements/Article/3520843/8-september-2023-epa-and-the-army-issue-final-rule-to-amend-2023-rule/. However, as a result of ongoing litigation on the January 2023 Rule, in the 27 states (including Georgia) and for certain parties, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Sackett decision until further notice (https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update; https://www.epa.gov/system/files/documents/2023-10/2023-joint-coordination-memo-pre-2015-regulatory-regime_508c.pdf). Additional information regarding the rule is available on EPA's website at https://www.epa.gov/wotus.
August 29, 2023: The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule amending the 2023 definition of “waters of the United States” to conform with the recent Supreme Court decision in Sackett v. EPA. The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation. This action provides the clarity that is needed to advance these goals, while moving forward with infrastructure projects, economic opportunities, and agricultural activities.
More information about the final rule is available here: https://www.epa.gov/newsreleases/conform-recent-supreme-court-decision-epa-and-army-amend-waters-united-states-rule.
The agencies will host a public webinar on September 12, 2023 to provide updates on the definition of “waters of the United States.” For registration information, please visit EPA’s webpage for the amendments rule. The agencies also plan to host listening sessions this fall with co-regulators and stakeholders, focusing on identifying issues that may arise outside this limited rule to conform the definition of “waters of the United States” with the Sackett v. EPA decision.
Learn more about this action on EPA’s “waters of the United States” website.
April 12, 2023: A district court judge in North Dakota issued an order preliminarily enjoining in 24 States the rule issued by EPA and the Department of the Army defining “waters of the United States.” The agencies are reviewing the decision and their options. In light of the preliminary injunctions, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime in 26 States until further notice.
April 12, 2023: Joint Public Notice – Notice of Availability of the Beta Streamflow Duration Assessment Method for the Southeast: https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll15/id/2073: The method, data forms, and training opportunities are available at: https://www.epa.gov/streamflow-duration-assessment/beta-streamflow-duration-assessment-method-northeast-and-southeast. For additional information on the development of regional Streamflow Duration Assessment Methods for nationwide coverage, see: https://www.epa.gov/streamflow-duration-assessment.
March 9, 2023: The U.S. Army Engineer Research and Development Center, Ecosystem Management and Restoration Research Program presented research on methods used to address situations commonly encountered in areas where the hydric soil Technical Standard (TS) established by the National Technical Committee for Hydric Soils (NTCHS) might be applied (NTCHS 2007): Indicator of Reduction in Soils (IRIS) devices: A new tool with Regulatory and Planning applications. IRIS devices provide a valuable tool to determine the redox status of a soil, which may inform wetland delineation, wetland functional assessments, and mitigation banking/ecosystem restoration outcomes. https://emrrp.el.erdc.dren.mil/webinars/2023/03/Webinar_2023-03-09_Berkowitz-Currie-Rabenhorst_IndicatorofReductioninSoils(IRIS)devicesAnewtoolforregulatoryplanning.mp4
Federal Agencies Solicit Comments on Draft Changes to 2022 National Wetland Plant List: The U.S. Army Corps of Engineers (USACE), 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 draft changes to the 2022 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 two plant species in the Arid West region. The Federal Register Notice (FRN) for the 2022 NWPL update can be found here: https://www.federalregister.gov/documents/2023/01/20/2023-01026/national-wetland-plant-list. The public comment period ends on March 21, 2023. Additional information regarding public notice is available on HQs Regulatory website at https://www.usace.army.mil/Media/Announcements/Article/3274694/23-january-2023-federal-agencies-solicit-comments-on-draft-changes-to-2022-nati/.
March 20, 2023: The final "Revised Definition of 'Waters of the United States'" rule (the “2023 Rule”) became effective. The 2023 Rule is operative in all U.S. jurisdictions except the states of Idaho and Texas (https://www.usace.army.mil/Media/Announcements/Article/3335318/20-march-2023-final-revised-definition-of-waters-of-the-united-states-becomes-e/). The Corps has now posted the 2023 Rule AJD Form and User Manual on the Headquarters website https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/juris_info/. Additional information regarding the rule is available on EPA’s website at https://www.epa.gov/wotus.
The Savannah District has added a page to our web site providing step-by-step directions on how to search for an existing/past action on a property. The page walks interested individuals through the process of accessing the public ORM website, e-mailing the Corps for a record check, and finally obtaining a copy of the permit or file if you are the owner of property. The site can be accessed at: https://www.sas.usace.army.mil/Missions/Regulatory/Property-Search/.
December 1, 2022: Notice of Availability of the 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 the U.S. Environmental Protection Agency (EPA) 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 are soliciting public comments on this Interim Draft. To view the announcement see: https://www.usace.army.mil/Media/Announcements/Article/3233308/1-december-2022-release-of-the-interim-draft-of-the-national-ordinary-high-wate/.
April 6, 2022: The Supreme Court (SCOTUS) reinstated EPA’s 2020 401 Water Quality Certification Rule by staying the order of the District Court of Northern California that vacated EPA’s 2020 rule on 21 October 2021, until the 9th Circuit Court of Appeals hears the appeal and provides its decision and disposition of any writ of certiorari to SCOTUS is completed. As a result, all Section 404 individual permits requiring an individual water quality certification must follow the procedures established under the 2020 Section 401 Rule. The Federal Register that includes the 2020 401 WQC Rule is attached to this newsletter. For a summary of the required procedures, please refer to the Savannah District's original public notice: https://www.sas.usace.army.mil/Missions/Regulatory/Public-Notices/Article/2411689/district-public-notice-of-the-clean-water-act-section-401-certification-rule/.
April 5, 2022: Army Corps of Engineers Announces the Release of Automated Wetland Determination Data Sheets (ADS). The U.S. Army Corps of Engineers (USACE) announces the release of the ENG Forms 6116 (1-9), Automated Wetland Determination Data Sheet (ADS), and the associated “User Guide for Automated Wetland Determination Data Sheets.” These documents are available at the USACE Regulatory Headquarters website in both Portable Document Format (PDF) and Microsoft Excel (Excel) file formats. Practitioners should, at a minimum, utilize the PDF versions of the Office of Management and Budget approved forms to document the presence or absence of wetlands for the applications related to the administration of the Clean Water Act (CWA) and the Rivers and Harbors Act (RHA). The Excel-based ADS is an optional tool. However, the PDF versions do not provide the automated features found in the Excel-based versions. Link to the ADS and User Guide: (https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/; under “General Information”).