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/.