U.S. EPA/Corps Release Implementation Tools for Navigable Waters Protection Rule

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers have released new implementation tools for the Navigable Waters Protection Rule that went into effect earlier this summer.  These tools are available online for the public to view and include educational resources, new forms, and “implementation memos” to provide greater clarity and consistency implementing the rule across the country.

Resources

EPA implementation page: https://www.epa.gov/nwpr/training-and-implementation-materials

• Power point presentations (and webinar recordings) on various topics
• Links to four implementation memos (Elevation of TNW decisions; Ditch exemptions; Prior Converted Cropland; and Coordination – see below for summary)
• Additional implementation resources are available here: https://www.epa.gov/nwpr/implementation-resources

Corps implementation page: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/juris_info/

• New Jurisdictional Determination (JD) form
• New JD form user manual
• The Corps website also links to the implementation memos

Implementation Memos – In Brief

• EPA/Corps Memo on Irrigation and Drainage Ditches: Defines “irrigation ditch,” “drainage ditch,” “construction,” and “maintenance” for the purposes of the ditch exemptions and the “recapture provision.”  Discusses the two-part test for determining the applicability of the recapture provision (where a permit may be required for an otherwise exempted activity).  Provides a flow chart to help navigate the process.  
• EPA/Corps Memo on Elevation of Specific Draft Determinations: Establishes a process to elevate draft determinations concluding a water is “susceptible to use” solely based on evidence of recreation-based commerce. 
• EPA/Corps/U.S. Department of Agriculture (USDA) Memo on Prior Converted Cropland: Promotes coordination between agencies; Establishes a point of contact (lead representative) for technical issues; Clarifies roles.
• EPA/Corps Memo on Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule: Creates a process for the agencies to coordinate on relevant policy; Creates a process to coordinate on certain draft approved JDs as well as a joint agency review process for final approved JDs and EPA jurisdictional decisions.  The memo establishes a process similar to an audit to gauge consistency in JDs across the country.

For more information, please contact Melinda Tomaino at Melinda.tomaino@agc.org.