The agencies are 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.

On November 18, 2021, the agencies announced the signing of a proposed rule to revise the definition of “waters of the United States.” This proposal marks a key milestone in the regulatory process announced in June 2021. The agencies propose to put back into place the pre-2015 definition of “waters of the United States,” updated to reflect consideration of Supreme Court decisions. This familiar approach would support a stable implementation of “waters of the United States” while the agencies continue to consult with states, tribes, local governments, and a broad array of stakeholders in both the current implementation and future regulatory actions.

A durable definition of “waters of the United States” is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a review conducted by the agencies as directed by the January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

Further details about the agencies’ plans, including information regarding the upcoming public meetings and proposed rule docket, can be found here.

An approved jurisdictional determination (“AJD”) is a document provided by the Corps stating the presence or absence of “waters of the United States” on a parcel or a written statement and map identifying the limits of “waters of the United States” on a parcel. See 33 C.F.R. § 331.2. Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 2005) (Regulatory Guidance Letter (RGL) 05–02). 

As a general matter, the agencies’ actions are governed by the definition of “waters of the United States” that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. AJDs completed prior to the court’s decision and not associated with a permit action (also known as “stand-alone” AJDs under RGL 16-01) will not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. A NWPR AJD could also be reopened if the recipient of such an AJD requests a new AJD be provided pursuant to the pre-2015 regulatory regime. In that case, the Corps will honor such request recognizing that if the recipient of a NWPR AJD intends to discharge into waters identified as non-jurisdictional under the NWPR but which may be jurisdictional under the pre-2015 regulatory regime, such recipient may want to discuss their options with the Corps. AJD requests pending on, or received after, the Arizona court’s vacatur decision will be completed consistent with the pre-2015 regulatory regime.

As the agencies’ actions are governed by the regulatory definition at the time of the action, permit decisions made prior to the court’s decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. Permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. The Corps will not rely on an AJD issued under the NWPR (a “NWPR AJD”) in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the pre-2015 regulatory regime). Therefore, for any currently pending permit action that relies on a NWPR AJD, or for any future permit application received that intends to rely on a NWPR AJD for purposes of permit processing, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the pre-2015 regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on a preliminary JD or no JD whatsoever.

The US Army Corps of Engineers continues to operate under our telework plan and several changes to normal business operations remain in place.  As the COVID situation remains fluid, impacts to Regulatory Program delivery are unavoidable, but we continue to adapt as conditions change.  We recognize contact with applicants, stakeholders, other agencies, and the general public is required to successfully and efficiently deliver the program.  We are prepared to administer the program in a way that is protective of our employees, agency partners, stakeholders, applicants, consultants, the general public and all those with whom we interact.

The Buffalo District staff will minimize impacts to the continued delivery of Regulatory Program functions through the following actions. These actions are effective immediately and for an indefinite period of time.

Office Visits - The Buffalo, New York District Office; Auburn, New York; Stow, Ohio, and Oak Harbor, Ohio Field Offices are closed to the public without an appointment.  You may reach Regulatory staff at their respective offices, by email or telephone, at the contact information included at the end of this message.

Site Visits/Inspections (*UPDATE*) - We are currently conducting site visits as weather allows, but are requesting that participants be limited to the minimum necessary, and that all CDC recommended protocols are followed in order to protect our staff and you. We continue to evaluate the ability to sign off on actions, absent a site visit, by using available in-house and on-line resources.  You can assist in this effort by ensuring all submittals are complete, e.g. all the information required in an application form is completed, data sheets for wetland determinations are thoroughly filled out, maps and drawings are included, etc.

New Submittals – We have moved to a paperless environment and ask that all submittals be made electronically, if possible. We created three email boxes specific to New York; Ohio; and Permit Compliance, Non-compliance and Unauthorized Activities.  All new submittals, if you are not already working with a Project Manager, should be emailed to the following email boxes (Please note, if your submittal is larger than 20MB, please submit through DoD SAFE.  See instructions under “NOTES”):

LRB.Ohio.RegActions@usace.army.mil for Ohio applications and submittals

LRB.NewYork.RegActions@usace.army.mil for New York applications and submittals

LRB.Regulatory.PermitCompliance@usace.army.mil for Alleged Violations, Compliance, or Non-compliance matters

Once your project has been received and assigned a project number, you will receive an email with the number. Subsequently, you should receive a second email once the project has been assigned to a Corps project manager.  You can also check on the status of your project at the following link: https://www.lrb.usace.army.mil/Missions/Regulatory/Check-Permit-Status/.

Pending Actions:  If your request is currently under evaluation by a Regulatory Project Manager, we request you continue to submit electronic correspondence directly to the assigned Project Manager.  The subject line of the email should include the Corps-assigned project number (ORM Number) and/or project name and location. 

NOTES:

For large files that exceed 20 MB, you should send a request to receive a DoD SAFE link specific to your state:

Ohio: LRB.Ohio.RegActions@usace.army.mil

New York: LRB.NewYork.RegActions@usace.army.mil

DoD SAFE allows users the capability to securely send and receive large files, including files that are too large to be transmitted via email. If you are currently working with a Regulatory staff member, you should work directly with him or her.

If electronic submission is not possible, hard copy submissions through postal mail will continue to be accepted.  Hard copy should be provided only when electronic submissions are not possible.  There is intermittent access to postal mail so this will further delay receipt, internal distribution, and handling of your submittal. 

Public Notices: Posting of Public Notices on our website will continue.  Mailing of hard copies of Public Notices may be interrupted or significantly delayed; therefore, interested parties are strongly encouraged to request to be added to our electronic mailing list to receive information in a timely and uninterrupted manner.  Please send a request to one of the email inboxes listed above.

The threat from CoVID-19 remains, and we all must stay diligent to protect ourselves, our friends and family and our communities. I appreciate your understanding and patience as we all adapt to this new work environment and the changes we implemented to protect everyone from COVID while continuing to deliver the Regulatory program.

Regulatory staff continue to be available by email and telephone.  You may contact our office by phone using the following:

SENDING AN EMAIL TO:

LRB.Ohio.RegActions@usace.army.mil for Ohio applications and submittals

LRB.NewYork.RegActions@usace.army.mil for New York applications and submittals

LRB.Regulatory.PermitCompliance@usace.army.mil for Alleged Violations, Compliance, or Non-compliance matters

Buffalo District Office, Buffalo, New York: (716) 879-4330

Auburn, NY Field Office: (716) 879-4330 OR (315) 255-8090

Oak Harbor, Oh Field Office: (716) 879-4330 OR (419) 898-3491

Stow, Oh Field Office: (716) 879-4330 OR (330) 923-8197

Information regarding the Regulatory Program and permit applications is available on our webpage: https://www.lrb.usace.army.mil/Missions/Regulatory/

Everyone, take care of yourself and stay well!

Sincerely,

Steven Metivier

Chief, Buffalo District Regulatory Branch

The USACE Buffalo District has activated the Emergency Regional Permit for Allegany, Cayuga, Onondaga, Steuben and Yates Counties.  More information can be found at: https://www.lrb.usace.army.mil/Missions/Regulatory/New-York-Permit-Information/  Go to: Types of Permits, Regional General Permits, 99-000-1