A typical day as a member of the Regulatory team across the Southwestern Division might consist of arriving at a District office as a legal instruments examiner, triaging projects coming through via the United States Postal Service and filing the administrative records appropriately.
Other regulators might start their day meeting in a rural location with applicants and consultants, wading waste-deep through a stream to confirm a jurisdictional determination of a wetland and checking databases to ensure that “federally complete date” is correct. In the spring of 2020 things changed with the pandemic to include mandatory telework, and more emphasis on digital communication. Like the daily activities for SWD Regulators, the program adapts to change.
The Department of the Army Regulatory Program is one of the oldest in the Federal Government. Initially, it served a fairly simple, straightforward purpose: to protect and maintain the navigable capacity of the Nation’s waters. Time, changing public needs, evolving policy, case law and new statutory mandates have changed the complexion of the program, adding to its breadth, complexity, and authority.
Some of the more notable changes in the last year alone include: the rule making for re-issuance of the Nationwide Permit Program, Council on Environmental Quality final rule to Federal Agencies to implement the National Environmental Policy Act, Navigable Waters Protection Rule and the Clean Water Act Section 401 Certification Rule. Through change comes opportunity, and Regulators have stepped up to meet that challenge.
In the final rule, the U.S. Army Corps of Engineers, or USACE, reissued its Nationwide Permits (NWPs) and associated general conditions and definitions, with some modifications. In addition, the final rule included five new NWPs.
On March 15, 2021 those NWPs went into effect and are for current use. Nationwide Permits authorize certain activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. Two of the new NWPs would authorize certain categories of mariculture activities (i.e., seaweed and finfish mariculture) that are not authorized by NWP 48. It also divided the current NWP that authorizes utility line activities (NWP 12) into three separate NWPs that address the differences in how different linear projects are constructed, the substances they convey and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects.
Specifically, USACE modified the current utility line NWP 12 to authorize only oil and natural gas pipeline activities. Two new NWPs would authorize activities associated with the construction, maintenance, repair and removal of electric utility lines/telecommunication lines and utility lines that convey water, sewage and other substances. The fifth new NWP would authorize discharges of dredged or fill material into jurisdictional waters for the construction, expansion, and maintenance of water reuse and reclamation facilities. These modifications simplify and clarify the NWPs, reduce burdens on the regulated public and continue to comply with the statutory requirement that these NWPs authorize only activities with no more than minimal individual and cumulative adverse environmental effects.
On July 16, 2020, the Council on Environmental Quality issued a final rule to update its regulations for Federal agencies to implement the National Environmental Policy Act. The final rule became effective on September 14, 2020. Additional information about the final rule and its development is available on the NEPA CEQ’s website.
On June, 22, 2020, the Environmental Protection Agency and the USACE began implementing the Navigable Waters Protection Rule (NWPR) which changed the definition of what constitutes “Waters of the United States.” 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.
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 Clean Water Act. The final rule became effective on September 11, 2020. Section 401 of the Clean Water Act, or CWA, provides states and authorized tribes with an important tool to help protect the water quality of Federally regulated waters within their borders, in collaboration with Federal agencies. Section 401 of the CWA requires that, for any Federally-licensed or permitted project that may result in a discharge into waters of the United States (33 USC 1341), a water quality certification be issued to ensure that the discharge complies with applicable water quality requirements or that certification be waived. EPA’s regulations at 40 CFR 121 address Section 401 certification generally.
EPA also has water quality certification regulations for Federally-issued CWA Section 402 permits that are subject to the Section 401 certification requirements (40 CFR 124.53-124.55). Other Federal agencies may also have Section 401 certification regulations for their licensing and permitting programs.
With all the new changes, including our new native digital environment with telework, the entire Southwestern Division regulatory team (comprised of regulators, project managers, legal instruments examiners, budget analysts, administrative officers and others), remain committed to efficiently implementing the USACE regulatory program and to protecting the Nation’s aquatic resources and navigation capacity, while allowing reasonable development through fair and balanced decisions.
In the past calendar year, the current 94 staff members of the Southwestern Division Regulatory team completed over 9,100 actions ranging from jurisdictional determinations, general permits, individual permits, unauthorized activities, virtual public outreach events, compliance and enforcement cases and pre-application meeting requests, to name a few. One thing that doesn’t change, however, is the dedication of the staff from the Fort Worth, Galveston, Little Rock, and Tulsa Districts to the program and the public.
For more on the SWD Regulatory program, visit www.swd.usace.army.mil/Missions/Civil-Works/Regulatory.
|Date Posted:||04.23.2021 13:48|
|Location:||DALLAS, TX, US|
This work, SWD Regulators remain dedicated, adapt to changing program, by Mary Grunert, identified by DVIDS, must comply with the restrictions shown on https://www.dvidshub.net/about/copyright.