Tag: usacoe

What’s next for WOTUS after judge drops Trump’s 2020 NWPR rule?

Back in 2020, the Navigable Waters Protection Rule (NWPR) promulgated by the Trump administration significantly reduced the coverage of the water bodies in the United States. For many environmental organizations, agricultural and specialty crop stakeholders, this decision was inadequate, and Trump found himself the target of criticism. In contrast, developers and industry stakeholders welcomed this decision with open arms.

Nevertheless, as the political set is changing, the decisions issued by the Administration undergo changes as well. Quickly after taking the service, President Biden took steps toward repealing the Trump-rule. After reviewing the actions taken by Trump Administration, the key term in the Clean Water Act (CWA) is changing for another time. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on June 9, 2021, made a joint announcement that they intend to examine and make alterations to the WOTUS rule. Biden Administration explained that these alternations are driven by the inconsistency and certain obstacles to the new scientific and environmental policy aspirations. Additionally, Corps and EPA had sizeable concerns about the NWPR and established an unavoidable need for changes. They intended to replace the NWPR through the rulemaking process.  

Almost three months later, On August 30, 2021, the U.S. District Court for the District of Arizona entered an order in Pasqua Yaqui Tribe v. EPA, so now things have moved in the planned direction, and the Biden administration can take a short break. The federal court ruling made a decision to put an end to the Trump-era Clean Water Act rule. It is not specified whether the Arizona district court’s order would apply locally or nationwide.       

As Judge Rosemary Márquez of the U.S. District Court for the District of Arizona ruled, the decision to withdraw the federal protection for streams and wetlands across the country was defective and too flawed to keep in place. The decision made by the federal court effectively puts an end to the Trump era and is a fundamental change that affects the entire nation. Consequently, the Navigable Waters Protection Rule is not currently in effect.

While the Navigable Waters Protection Rule is one of the most controversial decisions of the previous Administration, according to many, the new regulatory go in favor of both developers and farmers. At the same time, the EPA is spared from punishment by ruling out the Trump-rule, as the agency is preparing a replacement for the NWPR. 

In an email, the former EPA Office of Water attorney, Mark Ryan, said that: “The immediate effect is a nationwide vacature of the 2020 rule. There will be an appeal. Assuming the judge’s order is not stayed on appeal, then EPA will not have to go to the trouble of repealing the 2020 rule, and can move straight to drafting the new rule (which is almost certainly underway already).”

When it comes to the ruling and determining which “waters of the United States” are qualified to undergo federal protection under the Clean Water Act, the EPA and the Army Corps of Engineers consider implementing the 1986 regulation, which George W. Bush interpreted in the Agencies’ 2008 guidance. Legal experts explain that there is quite a big difference between restoring the Clean Water Rule and reverting to the pre-2015 status quo.  

This change makes some space and relieves EPA of unnecessary obligations. Therefore, instead of revoking the previous regulation, the EPA can focus its efforts and resources to anew the definition of “water of the U.S..” Ryan stated: “I think this relieves a bit of the pressure. Now they have one, not two big rulemakings to deal with.”

The most recent update about the EPA’s decision is that the agency currently discusses and evaluates the ruling. Timothy Carroll, the EPA spokesperson, stated that there aren’t any further comments on the final decision.  All things considered, the recent changes leave many open questions. The one most commonly asked is whether there will be a return to the 2015 Obama rule?! Do the industry stakeholders intend to appeal the vacatur order to support the NWPR? Will the Ninth Circuit limit the extent of the vacatur to Arizona? How do these decisions impact the current regulatory landscape?

US Army Corps of Engineers v Hawkes Co Inc.

The Swamp Stomp

Volume 16, Issue 23

Chief Justice Roberts announces unanimous opinion in U.S. Army Corps of Engineers v. Hawkes Co., Inc. (Justice Alito absent from bench) (Art Lien)
Chief Justice Roberts announces unanimous opinion in U.S. Army Corps of Engineers v. Hawkes Co., Inc. (Justice Alito absent from bench) (Art Lien)

On Tuesday, May 31, 2016 the Supreme Court of the United States (SCOTUS) unanimously ruled in favor of the respondent in the US Army Corps of Engineers (USACOE) v. Hawkes Co., Inc.  The decision ruled that a Waters of the US (WOTUS) Jurisdictional Determination (JD) is a final agency action.  The plaintiff (USACOE) had postulated that it was not and the respondents (Hawkes) argued that it was a final agency action.

Justice Roberts wrote the majority decision for the Court primarily on a Memorandum of Agreement (MOA) between the Corps and the Environmental Protection Agency (which shares authority to enforce the Act).  The MOA states that “final determinations” made pursuant to the MOA “will be binding on the Government and represent the Government’s position in any subsequent Federal action or litigation concerning that final determination.”  This establishes a liability limit, or safe harbor, for the five-year validity period of a negative JD.  Seven of the eight Justices agreed that the MOA was critical to the decision.  Justice Ginsburg did not concur that the MOA was the deciding factor.  However, she did concur with the majority opinion that JD’s are final agency actions.

Justice Anthony Kennedy’s separate but concurring opinion indicated that he had doubts about the government’s power under the Clean Water Act. After observing during oral arguments of this case that the Clean Water Act is perhaps “unconstitutionally vague,” Kennedy wrote in his decision that the law “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

“The fact that the ruling was unanimous shows that even the liberal justices will not automatically defer to the Obama administration’s Clean Water Act policy interpretations which impact property rights,” said Larry Liebesman, a senior adviser at Dawson and Associates and former Justice Department environmental attorney. “The ruling also suggests that the WOTUS rule will likely face similar scrutiny should it reach the Court.”

The following is from the case brief prepared by the Pacific Legal Foundation (PLF) who is the attorney for the respondent (Hawkes).

Several years ago, Hawkes and its partners sought approval to harvest peat on approximately 150 acres of land adjoining their current operations in Minnesota. The Minnesota Department of Natural Resources was consulted because of its regulation of peat extraction and wetland replacement and restoration associated with it. The U.S. Corps of Engineers also undertook a years-long process to determine whether the land was a wetland subject to the Clean Water Act. During this time, the Corps repeatedly tried to persuade Hawkes to abandon its plans. Representatives emphasized that the permitting process was very expensive (the required assessments alone cost over $100,000), would take years, and ultimately might not even allow Hawkes to harvest peat on the land. A Corps representative even told a Hawkes employee that he should start looking for a new job. Nearly five years after first meeting with Hawkes, the Corps concluded that a portion of the land was a “water of the United States” because it had a “significant nexus” or impact on the Red River of the North 120 miles away. Therefore, according to the Corps, the land was subject to the Clean Water Act. Hawkes disagreed and filed an administrative appeal. A Corps review officer concluded that there was insufficient evidence to support the Corps’ original finding of Clean Water Act jurisdiction.

Rather than allow a judge to consider the validity of the Corps’ jurisdictional determination, the federal government claims Hawkes must first go through an expensive, months- or years-long additional process with the Corps to apply for a federal permit to use the property, which might ultimately be futile or come with conditions that are cost-prohibitive. Thus, Hawkes has three options: (1) undergo the long, costly, and potentially futile federal permitting process; (2) abandon the land, with significant financial losses; or (3) use the land without a permit and risk criminal prosecution and steep fines. Represented by Pacific Legal Foundation (PLF), Hawkes argues that it is absurd to spend years and hundreds of thousands of dollars for a permit that wouldn’t be necessary if the Corps is incorrect about its jurisdiction over the property. The property owners also should not have to forgo their business plans, or risk draconian penalties, without an opportunity to make their case in court.

Landowners are generally prohibited from using property regulated by the Clean Water Act without a federal permit. Even though Hawkes can demonstrate the Corps is wrong about the property at issue, the disagreement with the Corps creates a huge risk for Hawkes if it went ahead and used the property without a permit: the Corps could bring criminal charges and seek fines of tens of thousands of dollars per day.

Thus, it would be commercially foolhardy for Hawkes to use the parcel without some reasonable assurance that the Corps will not interfere with that use. Yet, the agency permitting process is time-consuming, expensive, and sometimes futile. Indeed, the Corps warned Hawkes that the permitting process could take years and Hawkes would have to pay over $100,000 just to submit an application. The Corps indicated it might not even issue a permit.

After losing in the district court, Hawkes asked PLF to help represent them in their appeal to the U.S. Court of Appeals for the Eighth Circuit. In April 2015, the Eighth Circuit ruled in favor of Hawkes, declaring that the agency’s issuance of the JD was “final agency action” that Hawkes could challenge in court. This decision created a circuit split because two other circuit courts had previously ruled against landowners raising the same type of challenge. The Solicitor General (representing the Corps) asked the Supreme Court to resolve the split regarding whether a final agency JD is immediately reviewable in court. In December 2015, the Supreme Court accepted the case for review.

On May 31, 2016 the Supreme Court ruled that Jurisdictional Determinations are final agency actions and can be challenged in court.

MT Man Convicted of Clean Water Act Violations and Destruction of US Property

The Swamp Stomp

Volume 16, Issue 16

22873752

MISSOULA – On April 7, 2016 a federal Montana jury found Mr. Joseph David Robertson, 77, guilty on two counts of unauthorized discharge of pollutants into waters of the United States and one count of injury or depredation of United States property.  He now faces up to 15 years in prison and a $250,000 fine.  The sentencing phase is pending.  Mr. Robertson was indicted by a grand jury in May of 2015 as a result of illegal ponds he built on two parcels of land near Basin, Montana, one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property.  The ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and caused widespread damage to both properties.

At trial, the government introduced evidence that in October of 2013, a United States Forest Service (USFS) Special Agent visited the National Forest property to determine whether Mr. Robertson had complied with previously issued conditions of probation for misdemeanor violations of USFS regulations.  The Agent testified at trial that during the site visit, she observed multiple ponds dug into an existing stream on both USFS and adjacent private property.

Mr. Robertson lives on the White Pine Lode patented mining claim that he owns. In 2013 and 2014, he dug ponds that discharged dredged and fill materials into an adjacent tributary of Cataract Creek and into nearby wetlands. A U.S. Forest Service agent discovered the ponds when she went to the property to see whether Mr. Robertson had complied with a judge’s previous order to remove structures he had built on federal lands without permission.

Mr. Robertson dug the ponds to protect his property from fire and to water his horses, his federal public defender said in court filings. Mr. Robertson acknowledged at the time that he didn’t have a permit to do the work, but he said a Montana Fish, Wildlife and Parks official had given him permission to dig.

Cataract Creek flows into the Boulder River, which empties into the Jefferson River. The U.S. Army Corps of Engineers sent Robertson a notice in 2014 that he was discharging pollutants without a permit, but Mr. Robertson’s wife threw the certified mail notice into the trash at the post office, federal prosecutors said.

The U.S. Attorney’s Office filed a criminal indictment against Mr. Robertson in May 2015, charging him with unauthorized discharge of pollutants into U.S. waters and malicious mischief for injuring the property of the United States. Government officials estimated it will cost nearly $70,000 to repair the damage, and that the value of the wetlands lost in the 1.2-acre area is estimated between $25,000 and $40,000 per acre.

During a subsequent site visit in November of 2013, Mr. Robertson admitted to Environmental Protection Agency (EPA) and USFS Criminal Special Agents that he had performed the work on the National Forest property using an excavator.  State and federal officials visited the site again in May of 2014, and observed that Mr. Robertson had done additional work.  The site was now approximately 1.2 acres in size, and extended beyond the National Forest property to a private property that he did not own.  The work consisted of nine ponds of varying sizes, including some as large as approximately 4900 square feet that were placed directly in the stream and wetlands area.  Unconsolidated dredged material from the ponds had been used to create the berms and had been placed in and around the stream and wetlands.  Mr. Robertson admitted that he had completed the additional work.  Additional investigation revealed that Mr. Robertson continued to construct ponds on the USFS property after May of 2014, despite being told repeatedly that he had no legal right to do so.

One of the central legal issues at trial was whether the waters polluted by Mr. Robertson were “waters of the United States” for purposes of the Clean Water Act.  The United States introduced evidence and expert testimony from the Army Corps of Engineers and the EPA that the stream and wetlands had a significant nexus to traditional navigable waters, and therefore were “waters of the United States.”  Fishery biologists from the Montana Fish, Wildlife and Parks (FWP) and the USFS testified that this headwater and wetland complex provided critical support to trout in downstream rivers and fisheries, including the Boulder and Jefferson Rivers.

“This verdict sends a message that the United States will not stand by and allow streams and wetlands of the United States to be polluted, or National Forest lands to be injured,” said United States Attorney for the District of Montana Mike Cotter.  “Clean and healthy waterways are a critical resource for all forms of life and are a Montana value.  It is imperative that we protect this increasingly scarce resource.  The collaborative efforts of multiple state and federal agencies in cases like this help ensure that individuals who seek to degrade it will be held accountable.”

“Rivers, streams and wetlands provide essential habitat for fish and wildlife which must be protected, and EPA and its law enforcement partners are committed to protecting these invaluable natural assets as well as the communities around them,” said Jeffrey Martinez, Special Agent in Charge of EPA’s criminal enforcement program in Montana.  “The defendant’s illegal activity took place not only on public land but also on private property he didn’t own.  Today’s guilty verdict demonstrates that polluters will be held accountable for their actions.”

The case was prosecuted by Assistant U.S. Attorney Bryan Whittaker and Special Assistant U.S. Attorney Eric Nelson from the United States Environmental Protection Agency.  This case was investigated by multiple state and federal agencies including the United States Forest Service, the Environmental Protection Agency Criminal Investigation Division, the Army Corps of Engineers, and the Jefferson County Sheriff’s Office.    Other agencies that assisted the investigation included Montana Fish, Wildlife and Parks and the Jefferson Valley Conservation District.

Sources:

https://www.justice.gov/usao-mt/pr/basin-man-convicted-clean-water-act-violations-and-destruction-us-property

http://www.washingtontimes.com/news/2015/oct/6/trial-underway-for-man-charged-with-breaking-clean/

GOP Lawmakers Encourage EPA to Rethink Clean Water Rule

Swamp Stomp

Volume 15, Issue 8

The Republican controlled Congress is expected to place a significant dent in President Barack Obama’s environmental agenda this year, and plans to begin with the “Waters of the U.S.” rule proposed by the Environmental Protection Agency and the Army Corps of Engineers. On February 4, 2015, GOP lawmakers advised top environmental officials that they ought to abandon their proposal to define what is and is not considered a body of water by federal law.

The Republican majority that now controls both the House of Representatives and the Senate demonstrated its intent to derail the project in an unusual joint hearing between the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.

During the hearing, Republicans expressed indignation at what they referred to as a “power grab,” while Democrats retorted with claims that opposition to the rule is based upon a tower of misconceptions.

Democratic Senator Barbara Boxer of California asserted, “I’m confused because I think people are arguing against some mythical rule.” Then later when responding to the claim that the government was seeking to regulate tiny and inconsequential bodies of water, she claimed, “We don’t want to regulate a puddle. That’s ridiculous.”

The EPA and the Army Corps of Engineers first proposed the rule in order to simplify and clarify the meaning of the 1972 Clean Water Act. The Act covers rivers, lakes, and year-round wetlands, but there has been longstanding confusion over whether waterways such as streams that dry up for part of the year and wetlands that are only wet during springtime are included.

The rule is of the greatest importance to farmers, developers, and other landowners, because the Clean Water Act requires the use of permits for developing or discharging into waters included under the Act. As a result, farmers and officials in many states have vigorously opposed the rule ever since it was announced in 2014.

The EPA and the Army Corps of Engineers received over 1 million comments from the public about the proposal. This number reflects how widespread the issue has become, as well as the growing interest in the highly technical federal proposal.

Despite the opposition, both the EPA and the Army Corps of Engineers hope to finalize the rule this spring.

Congressional Republicans, however, plan to resist the establishment of such a rule. They have asserted that they will introduce new legislation to prevent the administration from finalizing the rule. If such legislation is passed, then a potential veto showdown with the president may materialize.

The Republican Representative Bill Shuster of Pennsylvania claimed, “If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects—and in some cases regulate land-use activities.” The rule, he said, would be an “end run around Congress—another example of overreach by this administration.”

EPA Administrator Gina McCarthy has been extremely vocal in defending the rule, and was called upon during the hearing to do so again. She said, “The proposal was not an attempt to expand the federal government’s jurisdiction, but instead to merely clarify it. And the proposal is just that—a proposal; federal officials are reviewing all those comments that have come in and will respond to the widespread concerns that have been expressed.”

EPA Public Comments Close on 11/14/14

Swamp Stomp

Volume 14, Issue 45

Pubic comments on the proposed “Waters of the US” regulations close on November 14, 2014.  That is if they do not extend them once again.  I very much encourage you to submit your comments before then.  Many of our readers already have done so as evidenced by the over 250,000 comments submitted to date.

You can submit your comments online by going to:  http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0001

If you do comment, I would encourage you to post your comment tracking number in the comments section of this post.  My comment comment tracking number is 1jy-8fd2-fndk.  I have posted my full comment below.

My main concern is not that the definition needs to be revamped.  Rather, it is more focused on the way it is being done.  I am very concerned that the vast majority of water resource and wetland professionals have been left out of this discussion.  The regulations have been drafted by a very select group of mostly academics including at least one foreign national from Canada.  There are virtually no professionals involved.

I do not believe that this new definition is a matter of the “right thing to do.”  It is more a matter of is it the legal thing to do.  Does the President have the right to act alone and promulgate a regulation that expands the  reach of government into private landownership?  I believe that is a matter for our representative and elected officials in Congress to take up.

What do you think?

– Marc

Environmental Protection Agency

Water Docket

Mail Code 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Comments on the U.S. Environmental Protection Agency’s and U.S. Army Corps of

Engineers’ Proposed Rule to Define “Waters of the United States” Under the Clean

Water Act,

Docket ID No. EPA-HW-OW-2011-0880

To whom it may concern:

I would like to offer my comments on the proposed “Waters of the US” (2011-EPA-OW-0880) as advertised the Federal Register on April 21, 2014.

My chief comment relates to the overall stated premise of these new rules. The proposed rules are concerned with the perceived issue that the existing rules do not adequately represent the intent of Congress (ergo the people) when they passed the Clean Water Act in 1972. Currently, it is the Agencies’ stated belief that the intent of Congress was to claim jurisdictional authority over nearly every body of water in the United States including wetlands and non-wetlands.

In 2001 The Supreme Court ruled in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) that Congress did not have unlimited authority to regulate all bodies of water. This was emphasized on isolated wetlands associated with the SWANCC site. These wetland areas lacked the required commerce connection to downstream waters. The Clean Water Act is limited in jurisdiction to only those waters that have a potential to affect interstate or international commerce. Article 1, Section 8 of the US Constitution limits the role of the Federal government in this matter to only those areas that could affect commerce.

The proposed rules seem to ignore the SWANCC ruling of the Supreme Court. In fact, it is the stated intention of this rule to reverse the Courts decision.

Under the Constitution, it is the role of the executive branch to administer the laws that are passed by Congress. It is acknowledged that many aspects of the Clean Water Act are purposely left to the discretion of the executive branch to interpret these laws by promulgating regulations such as this proposed rule. However, the Executive branch does not have the authority to expand the regulations beyond what the laws allows. Similarly, it is the role of the Judicial Branch to reign in Congress and the President should they pass a law that is beyond what the Constitution allows as was done with the SWANCC case.

The White House Office of Management and Budget (OMB) report referenced in the proposed rule states that there is a minimal expansion of Federal jurisdiction over what is currently called “Waters of the US”. The report estimates that the expansion is only about 3%. While this may seem small on a relative scale it represents a land area roughly the size of the State of Arizona. This is in fact a rather large expansion of the Federal Governments reach into private land ownership. I am very concerned with the concept that the Executive Branch can expand the Federal Governments land holdings without the consent of the other two branches of government and the people.

Much of the proposed rule is based upon a misinterpretation of Supreme Court Justice Kennedy’s lone opinion in the 2006 John A. Rapanos, et ux., et al., Petitioners v. United States; June Carabell, et al., Petitioners v. United States Army Corps of Engineers, et al. case. The concept of significant nexus is central to his opinion. However the proposed rule offers no further insight into what constitutes “significant.”

The proposed rule does by way of reference to the EPA Science Advisory Board (SAB) Connectivity Report delve into the concept of “nexus.” The SAB report ostensibly argues that all bodies of water are connected to all other bodies of water. At a very fundamental level this is true. However, the SAB report does not address the concept of which of these connections or nexus are “significant” as described by Justice Kennedy. If it is assume that all waters are connected and that there is no procedure to distinguish these connections as significant, then are we to assume that all connected water bodies are considered ““Waters of the US?”

It is clear in the opinions of the Supreme Court Justices that there is a difference between jurisdictional and non-jurisdictional waters. What is not clear, and in fact these proposed regulations make it much less clear, what exactly is a ““Waters of the US.”

Furthermore, I draw your attention to the 199 additional documents posted to the Regulation.gov docket folder in the last two weeks. They in fact have not been posted and the public is greeted with this 12 page notice:

Additional Supporting Materials for Docket EPA-HQ-OW-2011-0880

EPA will be adding the following documents to the docket. Copyrighted material is publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202–566–1744, and the telephone number for the Water Docket is 202–566–2426.

To what purpose do these documents serve? Why at this juncture are the Agencies concerned with copyright issues? It does beg the question of whether these copyright issue were addressed in the SAB report. Perhaps this should be disclosed.

How does this serve the public trust when the vast majority of these documents are only available by taking a trip to Washington, D.C. If the agencies feel that these documents are necessary to support their case for further regulations, then they should resolve the stated copyright concerns and publish them on the website in their entirety.   Otherwise these 199 documents should be removed from the docket.

I disagree that there is a regulatory need to update the definition of what is a waters of the United States. What is needed and was voiced by Justice Alito in the Sackett v. Environmental Protection Agency case is for Congress to more narrowly define what is meant by a “Waters of the US” by amending the Clean Water Act.   This would afford the public through its elected representatives in Congress to express its concerns and support for what should be regulated as a “Waters of the US” and what should not. This current proposed regulation dictates to the public what is and is not jurisdictional without the consent of the governed. With over a quarter- million public comments already submitted, it is clear that this is a matter for the people to decide, not a single branch of the government.

Thank you for your consideration.

Sincerely,

Marc Seelinger, PWS

Japanese Honeysuckle—Effects on Wetland Delineations in AGCP and EMP Regions

The Swamp Stomp

Volume 14, Issue 41

In 1988 the U.S. Fish and Wildlife Service published the National Wetland Plant List (1988 NWPL), which not only listed all the plants common to wetlands in each region, but also classified them based on how frequently they occurred in wetlands under natural conditions. This 1988 listing classified Lonicera japonica, commonly known as the Japanese Honeysuckle, as a Facultative-minus (FAC-) species. Facultative (FAC) species generally have a similar likelihood of occurring in both wetlands and non-wetlands; the (+) and (–) modifiers indicate species that have a higher probability of occurring in one habitat over the other—the (+) modifier indicates species more likely to appear in wetlands, and the (–) modifier is given to species less likely to occur in wetlands. Therefore, the Japanese Honeysuckle was classified as a species that may appear in wetlands, but was unlikely to do so. As a result, it became extensive within the transitional zone between wetland and non-wetland habitats.

The U.S. Army Corps of Engineers (COE), however, updated the list in 2012. The 2012 NWPL changed the specification of the Japanese Honeysuckle in the Eastern Mountains and Piedmont (EMP) Region and in the Atlantic Gulf Coastal Plain (AGCP) Region from FAC- to FAC. This shift meant that the Japanese Honeysuckle was then classified as a wetland plant instead of a non-wetland plant.

Furthermore, this change in classification had the possibility of changing the delineation of wetlands in the EMP and AGCP regions. When the Japanese Honeysuckle occurred as a dominant species in a wetland area, there was a strong possibility of a positive dominance test for hydrophytic, or wetland, vegetation, which may have resulted in the expansion of the wetland’s boundaries.

The 2014 NWPL once again saw a change in the classification of the Japanese Honeysuckle. The Japanese Honeysuckle shifted from FAC to Facultative-Upland (FACU) in the AGCP Region. FACU species sometimes occur in wetlands—less frequently than FAC-, however—but generally occur in non-wetland habitats. Therefore, the Japanese Honeysuckle is no longer categorized as a wetland plant in the AGCP Region. Subsequently, this may result in the reduction of wetland boundaries in that region.

The Japanese Honeysuckle maintained its FAC classification in the EMP Region for a longer time than in the AGCP Region, however, its classification was altered earlier this year. March 31, 2014 saw the National Association of Home Builders (NAHB) submit a request that the classification of the Japanese Honeysuckle be changed from FAC to FACU in the EMP region. The COE responded on May 22 by listing the Japanese Honeysuckle on their website as FACU, effective immediately. The change in classification will be reflected on the 2015 NWPL, but the 2014 NWPL will remain unaltered. Now that the Japanese Honeysuckle is considered a non-wetland plant in the EMP Region, wetland delineations have the possibility of changing as the boundaries of wetlands may decrease.

The COE publishes changes to species classifications on their website, however, provides no formal public notification when revisions are made. Until such a process is implemented, the only way of finding out about classification changes is to periodically check the COE website.

USACOE suspending the existing general permits

Swamp Stomp

Volume 13, Issue 35

I bet that got your attention. I guess I should note that this is limited to the New England district. That is still a pretty big area and a very large population affected.

The following is a press release from the Corps. The important date is this Wednesday, as in tomorrow. Comments are due then.

Nationwide B

CONCORD, Mass. – The U.S. Army Corps of Engineers, New England District has proposed suspending the existing general permits in each of the six New England states and issuing the New England General Permit (NE GP) to authorize certain activities that require Department of Army permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act of 1899, and Section 103 of the Marine Protection, Research and Sanctuaries Act.

The Corps has extended the public comment period to Aug. 28, 2013. Here is a link to the proposal: http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/NEGP-PN.pdf. The original notice was issued on June 13, 2013 with a 45-day comment period. The comment extension is to allow inviduals and groups more time to submit their comments.

The NE GP would authorize activities in waters of the U.S. within the boundaries of and/or off the coasts of the six New England states (Massachusetts, Rhode Island, Connecticut, New Hampshire, Vermont and Maine), including activities occurring within the boundaries of Indian tribal lands that have no more than minimal adverse effects on the aquatic environment.

When GPs were first used in New England in the 1990s, they provided the Corps with significant efficiency, allowing a more streamlined review of minor projects under Section 10 and Section 404. At that time, it made sense to have a separate GP in each state as there were vast differences in state programs and priorities. Over time, however, both the Corps Regulatory program and state wetland programs have evolved. It now makes sense to develop a regional general permit that will continue to maintain a high level of environmental protection while allowing the Corps to streamline processes in New England, reduce regulatory redundancy, ensure consistent compliance with national policy, and alleviate a significant administrative burden for its staff, which currently must reissue each of the six state GPs every five years.

This also would facilitate permit review by partner tribal nations and agencies, be more user-friendly for the regulated public, especially those working in multiple states, and encourage consistency in wetlands and waterway regulation in New England while allowing for flexibility in establishing special conditions, thresholds, and processes that are important to individual states.

The proposed NE GP will not result in significant substantive changes to how activities in waters of the U.S. are regulated in the New England states. The NE GP organizes eligible work into activity-specific categories. This is intended to satisfy the requirements of Section 404(e) of the Clean Water Act, which allows the Corps to issue general permits for activities that are similar in nature and will cause only minimal individual and cumulative adverse environmental effects. Identifying specific activities will allow the Corps to adequately assess cumulative impacts of permitted activities, as well as fully assess impacts on threatened and endangered species.

General Permits are encouraged under the Clean Water Act as a way to streamline state and Federal regulatory programs. The District has had success with streamlining these programs with the use of GPs in New England (in Connecticut since 1990, in Maine since 1983, in Massachusetts since 1993, in New Hampshire since 1992, in Rhode Island since 1997, and in Vermont since 1997).

The public notice with the proposed New England General Permit (NAE 2013-00714) can be reviewed at

http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/NEGP-PN.pdf.

Public comments on this proposal should be submitted in writing by Aug. 28, 2013 to the U.S. Army Corps of Engineers, New England District, Regulatory Division (ATTN: Greg Penta), 696 Virginia Road, Concord, MA 01742-2751. Additional information is available from Greg Penta at 978-318-8862 or toll free 800-343-4789 or 800-362-4367 (if calling in Massachusetts) or by email to gregory.r.penta@usace.army.mil. Those who are interested in attending a question and answer session on this topic should contact Greg Penta.