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16 August 2018 - Definition of "Waters of the United States": Rule Status and Litigation Update

 

The EPA and the Army continue to review the U.S. District Court for the District of South Carolina’s decision to vacate and nationally enjoin the agencies’ final rule that added an applicability date to the 2015 Clean Water Rule. Pursuant to the court’s order, the 2015 Clean Water Rule is now in effect in 22 states (including the States of New York and Ohio), the District of Columbia and the U.S. territories. Parties to the case, including the EPA and the Army, have filed motions appealing the order and seeking a stay of the district court’s decision. While the litigation continues, the agencies are complying with the district court’s order, and implementation issues that arise are being handled on a case-by-case basis. The agencies recognize the uncertainty this decision has created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis regarding which rules are in place in which states.

Clean Water Rule Resources:

Click here to expand contentClick here to collapse content  December 11, 2018 - The U.S. Environmental Protection Agency and the Department of the Army have proposed a new definition of "waters of the United States"
The U.S. Environmental Protection Agency and the Department of the Army have proposed a new definition of "waters of the United States" that clarifies federal authority under the Clean Water Act.  The agencies' proposal is the second step in a two-step process to review and revise the definition of "waters of the United States" consistent with the February 2017 Presidential Executive Order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."  The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.  More information including a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule/step-two-revise and https://www.epa.gov/wotus-rule.
Click here to expand contentClick here to collapse content  Wetlands
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Jurisdictional Determinations: A Jurisdictional Determination (JD) is a two step process of 1) identifying and locating jurisdictional Waters of the United States (including wetlands) on a property and 2) determining whether those areas are regulated by the U.S. Army Corps of Engineers under section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. Receiving a jurisdictional determination is recommended when planning a project.

U.S. EPA General Information

RGL 16-01- Jurisdictional Determinations               

 

RGL05-02 - Regulatory Guidance Letter: Expiration of Geographic Jurisdictional Determinations of Waters of the United States Required Information for Jurisdictional Determinations.

Clean Water Act Guidance - this single link will provide all available guidance on the Clean Water Act, including the Instructional Guidebook, as well as updates and revisions. 

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Mitigation

Permit applicants are required to describe how they will avoid, minimize, and compensate for impacts to waters of the United States.  Unavoidable impacts may require compensatory mitigation to help offset the loss of functions and services.  Typically, compensatory mitigation will be required for permanent jurisdictional wetland losses greater than 0.1 acre.  Compensatory mitigation for jurisdictional streams or other aquatic resource impacts will be determined on a case-by-case basis.  For additional information regarding mitigation requirements, please review the information below and/or contact us.

Mitigation Rule and Court Case Information:

- Final Mitigation Rule

- Final Mitigation Rule - Questions & Answers

- News Release - Army Corps & EPA

- USACE Headquarters Mitigation Information

 

Fact Sheets:

- Site Protection of Compensatory Mitigation Projects Fact Sheet

- Watershed Approach to Compensatory Mitigation Projects Fact Sheet

- Financial Assurances of Compensatory Mitigation Fact Sheet

- Long-Term Management of Compensatory Mitigation Projects Fact Sheet

 

Specific Information for Ohio:

- Guidelines for Stream Mitigation Banking and In-Lieu Fee Programs in Ohio

- Ohio Wetland Mitigation Banking Guidelines

 

Find Available Credits from Mitigation Banks or In-Lieu Fee Programs:

- RIBITS - Regulatory In-Lieu Fee and Bank Information Tracking System

- Online RIBITS Tutorial

- Utilizing the RIBITS "Find Credits Tool"

 

Templates:

- FINANCIAL ASSURANCES - PERFORMANCE BOND TEMPLATE

The "Performance Bond Template" document link is provided for drafting purposes.  Please contact the Buffalo District Office of Counsel should you have questions or wish to consult regarding any of the procedures involved in the processing of this legal document.  Do not execute and record the instrument and exhibits (including any survey(s)) until approved in writing by the USACE.                          

Performance Bond Template

- MODEL DECLARATION OF RESTRICTIVE COVENANTS

The following “Declaration of Restrictive Covenants” document is provided for drafting purposes. Please contact the Buffalo District Office of Counsel should you have questions or wish to consult regarding any of the procedures involved in the processing of this legal document.  Do not execute and record the instrument and exhibits (including the survey(s)) until approved in writing by the USACE.

NY Model Declaration of Restrictive Covenants Document

Ohio Model Declaration of Restrictive Covenants Document

- MODEL CONSERVATION EASEMENT

The following “Model Conservation Easement” document is provided for drafting purposes.  Please contact the Buffalo District Office of Counsel should you have questions or wish to consult regarding any of the procedures involved in the processing of this legal document.  Do not execute and record the instrument and exhibits (including the survey(s)) until approved in writing by the USACE.

NY Model Conservation Easement Document 

Ohio Model Conservation Easement Document

 Additional Mitigation Information:

- IWR White Paper: Implementing Financial Assurance for Mitigation Project Success

- Regulatory Guidance Letter 08-03: Minimum Monitoring Requirements for Compensatory Mitigation Projects

- Compensatory Mitigation Site Protection Instrument Handbook for the Corps Regulatory Program

- Mitigation Plan Requirements

- Compensatory Mitigation Rule Timeline for Bank or ILF Instrument Approval

 

Click here to expand contentClick here to collapse content  Section 10 Waterways