The San Francisco District is pleased to announce the availability of the Model Amendment to Incorporate Advance Mitigation Language for BEIs that Utilize the 2008 or 2017 BEI Template (Model Amendment).

The San Francisco District, in collaboration with other agencies on the California Mitigation Banking Project Delivery Team (PDT), updated the Bank Enabling Instrument (BEI) template in 2021 to allow the sale of credits without transfers.  As a follow-on action, and at the request of Caltrans and mitigation bank sponsors, the PDT has worked for the past year to develop a mechanism to allow the incorporation of the advance mitigation language included in the 2021 BEI template into currently approved BEIs.

The Model Amendment incorporates the 2021 BEI template language that allows for the sale without a transfer of credits at a mitigation bank and the inclusion of new credit sale and associated transfer templates.  It also includes a process for bank sponsors to request the reduction of the Performance Security by 50% once a mitigation bank enters the Long-Term Management Period.

The Model Amendment was designed to be used by bank sponsors requesting an amendment to BEIs developed using the 2008 or 2017 version of the BEI template.  Bank sponsors should verify that sections referenced in the Model Amendment accurately reflect the sections in the BEI template.  The language included in the model amendment may be useful when proposing an amendment for these mitigation banks.  We recommend bank sponsors whose BEIs were approved prior to the development of templates should coordinate their desire to amend their BEI and should incorporate similar language to the model amendment, where feasible.

The Model Amendment has been posted to the South Pacific Division’s Public Notice page at Model Amendment to Incorporate Advance Mitigation Language for Bank Enabling Instruments > South Pacific Division > Public Notices and References (army.mil)

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a final rule establishing a durable definition of “waters of the United States” (WOTUS). The rule was published in the Federal Register today, 18 January 2023. The effective date of this rule is set for 20 March 2023. 

In developing the rule, EPA and Army considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, 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.’’  The final rule advances the objective of the Clean Water Act and ensures critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.  The final rule is available at: https://www.federalregister.gov/documents/2023/01/18/2022-28595/revised-definition-of-waters-of-the-united-states.  Additional information regarding the rule is available on EPA’s website at https://www.epa.gov/wotus .

The Corps’ South Pacific Division issued a notice regarding the USEPA and the Department of the Army announcement of a process for stakeholders to submit nomination letters for a slate of nominees to potentially be selected for one of the geographically focused roundtables on revisions to the definition of Waters of the United States.  See https://www.spd.usace.army.mil/Missions/Regulatory/Public-Notices-and-References/Article/2816963/waters-of-the-us-wotus-public-outreach-and-stakeholder-engagement-activities/.

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.

USACE announce today the publication in the Federal Register of the 2021 Nationwide Permits (NWPs) at https://www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits.  The 12 reissued and four new 2021 NWPs in the rule are necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  These 16 NWPs will go into effect on March 15, 2021 and will expire on March 14, 2026.  The 40 existing NWPs that were not reissued or modified by the January 13, 2021, final rule remain in effect. More information on NWPs can be found at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/National-Notices-and-Program-Initiatives/.

USACE announced today that it reissued 12 and issued four new 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 final rule is expected to be published in the Federal Register in the coming weeks. The pre-publication version of the final rule is available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/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

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.

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

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. 

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.

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.

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.