Regulatory Division Hot Topics

31 January 2024 - USACE launches new Regulatory Request System

 

USACE announces the launch of its new Regulatory Request System (RRS). RRS is designed to make the review of permit requests a transparent and efficient process for the public. RRS, currently in a beta version, provides general information on the Regulatory Program and allows the public to submit pre-application meeting requests and jurisdictional determination requests.

Additional capability is scheduled in Spring 2024. This added capability will allow users the ability to electronically submit individual and general permit applications and other necessary information, saving time and reducing the need for paper-based submissions.

RRS will streamline the permit application process and underscores USACE commitment to modernizing our application process, meeting user expectations, and providing a transparent, straightforward process for the timely review of permit requests.

Stay tuned for further updates on the full release of the RRS. Please click on the Please click on the following link to access RRS: https://rrs.usace.army.mil/

 

6 December 2023 - 2023 Rule "Revised Definition of 'Waters of the United States'" Training Presentations

 

On August 29, 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. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court's decision. Read more about the conforming rule. 

 

12 July 2023 - Regulatory Program Workshop September 21, 2023 

 

The Galveston District Regulatory Division is hosting a Regulatory Program Workshop on September 21, 2023 from 8:30 am to 4:30 pm.  Doors will open at 8 am.  The Workshop is open to the public, but to attend, you will need to submit an RSVP.  Seating is limited to 240 individuals.  An opportunity to RSVP will be forthcoming.  

 

6 July 2023 - Download the new version 2.0.0 of the Antecedent Precipitation Tool (APT) 

 

This new version of the APT contains additional functionalities, to include the incorporation of a newly developed gridded daily precipitation dataset from the National Oceanic and Atmospheric Administration, National Centers for Environmental Information.  USACE is also announcing the release of a new user guide for APT 2.0.0.  More information can be found by scrolling down to the APT section on this webpage HERE.  

 

27 June 2023 - UPDATE Supreme Court Ruling in Sackett v Environmental Protection Agency 

 

The Environmental Protection Agency and the U.S. Department of the Army (agencies) are in receipt of the U.S. Supreme Court's May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies are interpreting the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies are developing a rule to amend the final "Revised Definition of 'Waters of the United States'" rule, published in the Federal Register on January 18, 2023, consistent with the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. The agencies intend to issue a final rule by September 1, 2023.

 

20 June 2023 - Special Public Notice SWG-2016-01027 Dow Chemical Company Harris Reservoir Expansion Project Final Environmental Impact Statement (EIS)

 

The notice of availability for the Dow Chemical Company Harris Reservoir Expansion Project Final Environmental Impact Statement (EIS) was published by the Corps in the Federal Register on June 16, 2023. The Corps will execute a final decision regarding the proposed action and complete a Record of Decision no sooner than 30 days (July 17, 2023) following publication of the Notice of Availability of the Final EIS. The Final EIS is available for public review beginning on June 16, 2023. The Final EIS is accessible at the Corps’ Project webpage

Comments may be submitted during the entire 30-day review period and will be reviewed and incorporated into the administrative record prior to the Corps’ finalization of the procedure.

26 May 2023 - Supreme Court Ruling in Sackett v. Environmental Protection Agency 

 

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies continue to review the decision to determine next steps.

 

12 May 2023 - Definition of "Waters of the United States": Rule Status and Litigation Update 

 

On December 30, 2022, the Environmental Protection Agency and the U.S. Department of the Army ("the agencies") announced the final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register, and the rule took effect on March 20, 2023. However, as a result of ongoing litigation, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime in 27 States until further notice. See note below. The agencies developed the 2023 Rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth. More information about the final rule is available here.

 

On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the 2023 Rule issued by EPA and the Department of the Army defining “waters of the United States.” On April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 States the 2023 rule issued by EPA and the Department of the Army defining “waters of the United States.” These States include Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming.  

Note: On May 10, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting the motions of Kentucky and plaintiffs-appellants for an injunction pending appeal of the district court's decision. Commonwealth of Kentucky v. EPA (No. 23-5343) and Kentucky Chamber of Commerce, et al. v. EPA (No. 23-5345). In light of this injunction, the agencies will interpret "waters of the United States" consistent with the pre-2015 regulatory regime in Kentucky and for the plaintiff-appellants and their members in this litigation (Kentucky Chamber of Commerce, U.S. Chamber of Commerce, Associated General Contractors of Kentucky, Home Builders Association of Kentucky, Portland Cement Association, and Georgia Chamber of Commerce) until further notice.

The agencies are reviewing these decisions and their options. The agencies continue to believe the rule, which is informed by the text of the relevant provisions of the Clean Water Act and the statute as a whole, as well as the scientific record, relevant Supreme Court case law, input from public comment, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining "waters of the United States," is the best interpretation of the Clean Water Act.

The agencies remain committed to establishing and implementing a durable definition of “waters of the United States” informed by diverse perspectives. Our goal is to protect public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.

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.

EPA is providing the below map for informational purposes only to illustrate which definition of “waters of the United States” is generally operative in each state across the country as a result of litigation, and it cannot be relied on for specific determinations or other legal purposes. As the litigation continues, EPA will update the map, when possible, to reflect the most current information that is made available to the EPA and the Army.          

12 April 2023 - Joint Public Notice: US Army Corps of Engineers and US Environmental Protection Agency Notice of Availability of the Beta Streamflow Duration Assessment Methods for the Northeast and Southeast

 

The U.S. Army Corps of Engineers (Corps) Baltimore, Buffalo, Charleston, Chicago, Detroit, Fort Worth, Galveston, Huntington, Jacksonville, Kansas City, Little Rock, Louisville, Memphis, Mobile, Nashville, New England, New Orleans, New York, Norfolk, Philadelphia, Pittsburgh, Savannah, St. Louis, Tulsa, Vicksburg, and Wilmington Districts, and the U.S. Environmental Protection Agency (EPA), Regions 1, 2, 3, 4, 5, 6, and 7 jointly announce the availability of the Beta Streamflow Duration Assessment Methods (SDAM) for the Northeast and Southeast (dated April 12, 2023). The methods are rapid assessment tools to help distinguish between ephemeral, intermittent, and perennial streamflow at the reach scale for the Northeast and Southeast SDAM Regions. The beta SDAMs may help provide technical guidance for identifying waters that may be subject to regulatory jurisdiction under Section 404 of the Clean Water Act; however, these methods do not alter or change the definition of “Waters of the U.S.”

These beta SDAMs were developed for use in all or part of the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, New York, Pennsylvania, West Virginia, Virginia, North Carolina, South Carolina, Georgia, Florida, Louisiana, Alabama, Tennessee, Kentucky, Ohio, Indiana, Arkansas, Kansas, Illinois, Michigan, Missouri, Mississippi, Oklahoma, Texas, and the District of Columbia by the Corps and EPA. Due to differences in climate and a relatively small amount of data points, the Caribbean sites were not used to develop this iteration of the SDAM, nor is the Caribbean covered by the methods. These beta methods result from a literature review and multi-year field study conducted at 336 stream reaches across the range of hydrologic landscapes of the Northeast and Southeast. Developed through statistical analyses of the field data, the beta SDAMs provide a data-driven approach using reliable indicators to determine streamflow duration class at the reach scale. The agencies are making these beta SDAMs available for a one year preliminary implementation and comment period to inform the development of final SDAMs for the Northeast and Southeast.   The full text of the Joint Public Notice is available here. 

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.  

20 March 2023- Final Revised Definition of "Waters of the United States" Becomes Effective

 

On 20 March 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.  The U.S. Department of the Army and U.S. EPA (“the agencies”) final rule establishes a clear and reasonable definition of “waters of the United States” and reduces the uncertainty from constantly changing regulatory definitions that has harmed communities and our nation’s waters.  The agencies developed the 2023 Rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. The 2023 Rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth.

Until further notice, federal Clean Water Act jurisdiction in Idaho and Texas will continue to be determined under the pre-2015 regulatory regime. The pre-2015 regulatory regime refers to the Corps’ 1986 definition of “waters of the United States,” implemented consistent with relevant case law and longstanding practice, as informed by applicable guidance, training, and experience. This includes the 2003 SWANCC and 2008 Rapanos guidance documents.

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 EPA at cwaWOTUS@epa.gov.  More information about the final rule is available at: https://www.epa.gov/wotus/revising-definition-waters-united-states.

Historical Regulatory Hot Topics


Important Information on the Department of the Army Permitting Process and use of Nationwide Permits in the San Jacinto Waste Pits

 

Updated Jurisdictional Delineation GPS Procedures


To improve the customer service experience, the Regulatory Division has now established a Regulatory Hotline at 409-766-3869

Greetings from the Regulatory Division Chief

Dear Applicant,

Many proposed activities located near waters of the United States, including wetland areas, require a signed Department of the Army permit prior to the initiation of the project. To facilitate obtaining the necessary pemit, an application form and instruction sheets, with sample project plans, are found below. These materials outline the required submittals to our office and are provided for your use.

We have also included information regarding state approval of your proposal. Please note that the State of Texas has separate requirements for "structures" placed on or over submerged public lands. Should you have any questions regarding these requirements, please contact the appropriate state office directly.

The Regulatory Program has been established to protect the water resources of the United States. While considering your application for a permit, we will evaluate the probable impact of your proposed activity on the public interest, weighing the expected benefits that might be expected to accrue against reasonably foreseeable detriments. Concise project plans will certainly assists us in this evaluation. We also request, and consider, the views of other agencies, such as the Environmental Protection Agency, the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, the Texas Parks and Wildlife Department, the Texas General Land Office and the Texas Commission on Environmental Quality.

The foundations for this program are laws passed by Congress, principally Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act, as amended. Within the framework of the applicable laws, it is our intention to make this program as responsive to the desires and needs of the public as possible.

To this end, we stand ready to assist you with our program in any way we can. Please do not hesitate to call the Regulatory Branch at 409-766-3869. To assist us in improving our service to you, please complete the customer service survey.

Sincerely,

Nicholas Laskowski, P.G.
Chief, Regulatory Division

Electronic Submittal

Electronic Submittal Instructions

On July 19, 2020, the Galveston District’s Regulatory Division, will begin its transition into a paperless/electronic submittal as our primary means of accepting Regulatory business submittals. This includes, but is not limited to: Pre-application Meeting Requests, Applications for Section 10 Rivers and Harbors Act and Section 404 Clean Water Act Permits, Aquatic Resource Delineation Verifications, Jurisdictional Determinations, Mitigation Proposals, Purported Permit Non-Compliance and Alleged Non-Permitted Violations.  Please see the Special Public Notice for additional information.

COVID-19 response plan

Beginning March 18, 2020, the Galveston District’s Regulatory Division began utilization of telework for all staff, including the Corpus Christi Regulatory Field Office.  Telework will continue for an undetermined amount of time.  During this period Regulatory personnel will be working from home utilizing alternative technology to access work files and communicate via email.  Personnel have received guidance to evaluate risk involved with conducting local travel to perform site visits, and when asked to participate in interagency and applicant/consultant meetings.  They have also received direction to remain aware of and adhere to local/municipality and state proclamations regarding participation in gatherings and meetings and exercise flexibility in methods of participation for meetings that USACE normally hosts.

To ensure the continued delivery of the nation’s Regulatory Program, additional flexibility to standard requirements will be implemented.  Electronic submittals and signatures will be utilized when possible.  Also, virtual meeting capabilities, such as webinars or use of Skype, will be used in certain instances.   Applicants, resource agencies and the general public should continue to submit information via previously utilized methods such as mail, email and telephonic contact.  Please be aware that there will be no personnel in either of the offices and the best form of contact at this time is via email.  We realize that this will impact all work products that are currently being evaluated by the Galveston District, but please understand that we are working to identify all strategies to make this impact minimal while doing our part to keep the public and our workforce safe.  This announcement will be periodically updated as procedures and strategies are identified and implemented as we work through these challenging times, so please check back regularly.