On February 14, 2018, the US Army Corps of Engineers (USACE) and U.S. EPA  published the latest installment in the Waters of the U.S. (WOTUS) groundhog day saga.  Promising regulatory certainty, the rule is notable for how similar it is to the 1986/1988 WOTUS definition.  However, many in the regulated community will note that the proposed rule excludes ephemeral streams from federal jurisdiction, which is a change from the joint EPA and USACE 2008 memorandum that asserted jurisdiction over ephemeral streams.

This proposed regulation comes at a time when two different WOTUS definitions are currently enforced throughout the country, as I’ve written previously.  If ever there was a need for regulatory certainty, it is now as permittees wrestle with a checkered regulatory landscape across state lines.  But if the 2015 Obama-era WOTUS rule is anything to go by, we can expect the judicial branch to decide the fate of the proposed 2019 WOTUS rule.

A promising sign for prospective permittees is a recent USACE directive memorandum which would require state agencies to complete 401 Water Quality Certification (WQC) permitting decisions within 60 days of receipt of an application, instead of the 1-year window that is currently “standard practice.”  Since USACE permits cannot be issued without 401 WQC permits, this memorandum could help expedite some federal permitting timelines.  While most states have pre-authorized general 401 WQC permits already, watch for changes to individual WQC applications which typically take longer to process.

I will be providing a presentation on this topic at the Kentucky Chamber of Commerce’s 17th Annual Kentucky Environmental Conference on March 14, 2019 in Lexington, Kentucky.  More information about this conference is on the Kentucky Chamber’s website.  If you have specific questions about potential stream and wetland permitting needs, please contact me at josiahf@smithmanage.com. Josiah is an Environmental Scientist at Smith Management Group.