Navigable Waters Protection Rule Change: Updated 6.12.2020
Updated: Jun 12
Our team of technical experts are actively tracking this issue. Bookmark this post to keep up to date as these changes evolve.
Nationwide Permit (NWP) 12 Rule Change Due to recent litigation, a federal court in Montana has vacated NWP 12 for utility lines. This means that NWP 12 is not allowed to be used for any new project that has not been previously authorized under the permit or is not under construction. This ruling may be reversed at a later date if the United States Army Corps of Engineers (USACE) chooses to appeal the decision. If you currently have a project under construction that is utilizing a NWP 12, you may continue as planned with no issues. New projects can be evaluated for qualification under a variety of different NWP or other permitting options.
Update to Ruling: The USACE is now allowing the permit to be used for new sewer and water lines, just not oil and gas.
Waters of the US (WOUS) Rule Change The USACE has also published the new WOUS rule in the Federal Register that clarifies what is and what is not considered a WOUS and therefore regulated by the USACE. The most important change is that the USACE has designated ephemeral streams (streams that only flow during and after precipitation events) as non-regulated waters. No permits will be necessary for projects that cause direct impacts to ephemeral streams. Permits would still be required for perennial streams (streams that flow year round) and intermittent streams (stream that flow during a portion of the year). There are additional features that are designated as non-jurisdictional, but the deregulation of ephemeral streams is the highlight of the new rule.
We’re actively tracking these updates and changes. Bookmark this post for the latest updates and download any one of the following fact sheets.