• 15 September 2020 - Army Corps of Engineers announces proposal to renew and revise nationwide permits
  The U.S. Army Corps of Engineers announced today that it has prepared its proposal to renew and revise 52 nationwide permits for work in wetlands and other waters that are regulated by Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The proposal was published in the Federal Register today. The public comment period ends on November 16, 2020. The proposed rule is available through the Federal Register web site at: https://www.federalregister.gov/documents/2020/09/15/2020-17116/proposal-to-reissue-and-modify-nationwide-permits

• 14 September 2020 - Effective date of the Council on Environmental Quality (CEQ) rule to update the regulations implementing the procedural provisions of NEPA
  On July 16, 2020, the Council on Environmental Quality (CEQ) issued a final rule to update its regulations for Federal agencies to implement the National Environmental Policy Act (NEPA).  The final rule became effective on September 14, 2020.  Additional information about the final rule and its development is available on the NEPA website at https://ceq.doe.gov/laws-regulations/regulations.html.  The Corps of Engineers is in the process of updating its NEPA implementing regulations for the Regulatory Program (33 CFR Part 325, Appendix B) to comport with CEQ’s updated rule.  The Corps’ proposed rule is scheduled to be published in the Federal Register for comments during the first quarter of CY2021.

• 11 September 2020 - EPA finalized the “Clean Water Act Section 401 Certification Rule”
  On June 1, 2020, EPA finalized the "Clean Water Act Section 401 Certification Rule" to implement the water quality certification process consistent with the text and structure of the CWA. The final rule became effective on September 11, 2020. See Docket ID No. EPA-HQ-OW-2019-0405 for additional information.

  The final rule is available through the Federal Register website at: https://www.epa.gov/sites/production/files/2020-07/documents/clean_water_act_section_401_certification_rule.pdf

  Additional information is available on the EPA’s website at: https://www.epa.gov/cwa-401/statutory-and-regulatory-requirements-cwa-section-401-certification

• 4 August 2020 - Statement regarding Executive Order 13924
  USACE Regulatory Program works to regulate the waters of the United States by discouraging activities that have not been properly authorized and by requiring corrective measures, where appropriate, to ensure those waters are not misused and to maintain the integrity of the program (33 CFR 326.2).  USACE has enforcement implementing regulations at 33 CFR part 326, which describe the procedures in place to implement this policy, while making the most effective use of the enforcement resources available. 

  Regulations are clear that the decision to initiate an enforcement action resulting from the unauthorized discharges of dredged or fill material into waters of the U.S. and/or non-compliance with USACE-issued permits in a given case is discretionary (33 CFR 326.1).  As has always been the case, USACE exercises such discretion by taking into consideration the severity of the alleged violation and any attendant factors including whether there are emergency circumstances, whether the alleged violator has prior knowledge of the Clean Water Act requirements, whether the violation is willful or flagrant, etc. USACE regulations at 33 CFR 326.5(a) provide representative characteristics of violations that would generally make it appropriate for USACE to pursue criminal or civil action (e.g., “willful, repeated, flagrant, or of substantial impact”).  Violations stemming from good faith efforts to comply with applicable statutory and regulatory requirements would be among the facts considered by USACE when exercising its discretion on a case-by-case basis.  If USACE determines the existence of a potential violation and that additional action is required, it will normally seek to work with the alleged violator to resolve the alleged violation in the most appropriate manner, which often results in voluntary restoration or an after-the-fact authorization of the activities rather than the exercise of enforcement authority. 

• 22 Jun 2020 - Navigable Waters Protection Rule becomes effective
  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.
   

• 22 May 2020 - Final 2018 National Wetland Plant List
  The U.S. Army Corps of Engineers, as part of an interagency effort with the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service and U.S. Department of Agriculture Natural Resources Conservation Service, announce the availability of the final 2018 National Wetland Plant List (NWPL) in the Federal Register at https://www.govinfo.gov/content/pkg/FR-2020-05-18/pdf/2020-10630.pdf.  The 2018 NWPL is effective as of May 18, 2020 and will be used in any wetland delineations performed after this date.  Wetland delineation/determination forms should reference this version of the NWPL.  The 2018 NWPL is also available at http://wetland-plants.usace.army.mil/.  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.

• 28 Jan 2020 - NRCS and Army rescind 2005 joint memorandum
  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.

• 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.

• 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.

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