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Public Notice: Clean Water Act interpretive rule for 404(f)(1)(a)

On April 21, 2014, the USEPA and the Corps of Engineers are publishing a Notice of Availability and Public Comment to announce the availability of an interpretive rule regarding the applicability of the exemption from permitting provided under section 404(f)(1)(A) of the Clean Water Act for discharges of dredged and/or fill material associated with certain agricultural conservation practices based on the Natural Resources Conservation Service conservation practice standards that are designed and implemented to protect and enhance water quality. The interpretive rule was effective on April 03, 2014.

  

Under the CWA, section 404 regulates the discharges of dredged and/or fill material into waters of the U.S. and section 404(f)(1) includes a list of activities that are exempt from regulation under section 404. Section 404(f)(1)(A) provides an exemption for discharges of dredged and/or fill material from “normal farming, silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.”  The interpretive rule clarifies that certain NRCS conservation practices that are designed and implemented to protect and enhance water quality are included under these “normal farming, silviculture, and ranching activities.” 

 

The USEPA, the Corps, and NRCS have also entered into a Memorandum of Understanding to guide their future coordination on the exemption. The interpretive rule, Memorandum of Understanding, as well as a list of NRCS practices that meet the exemption, are available via the Internet on the USEPA websites: http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm and http://www2.epa.gov/uswaters; as well as on the Corps website under Latest News: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

 

National Issues Concerning the Interpretive Rule: Similar public notices are being published concurrently by other Corps division or district offices. The Federal Register notice provides public opportunity to become familiar with the interpretive rule and understand what has become effective as of April 03, 2014. The agencies recognize the importance and value of receiving public input on the implementation of this interpretive rule; input which may inform future revisions to the list of activities included under the interpretive rule. The agencies welcome comments in response to the Notice of Availability within 45 days from date of publication in the Federal Register.

 

Submit comments on or before June 05, 2014.

 

Submit your comments, identified by Docket ID No. EPA–HQ–OW–2013–0820 by one of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • E-mail: ow-docket@epa.gov. Include EPA–HQ–OW–2013–0820 in the subject line of the message.
  • Mail: Send the original and three copies of your comments to:

Water Docket,  Environmental Protection Agency

Mail Code 2822T

1200 Pennsylvania Ave. NW

Washington, DC 20460

Attn.: Docket ID No. EPA–HQ–OW–2013–0820.

  • Hand-delivery / courier: Deliver your comments to:

EPA Docket Center, EPA West

Room 3334, 1301 Constitution Ave. NW

Washington, DC 20460

Attn.: Docket ID No. EPA–HQ–OW–2013–0820

Such deliveries are accepted only during the Docket’s normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The telephone number for the Public Reading Room is 202–566–1744 and the telephone number for the Water Docket is 202–566–2426.

 

 

For further information please contact:

Stacey M. Jensen

Regulatory Community of Practice (CECW–CO–R)

U.S. Army Corps of Engineers

441 G St. NW

Washington, DC 20314

202–761–5856

USACE_CWA_RULE@usace.army.mil

 

Include the EPA Docket ID No. EPA-HQ-OW-2013-0820 in the subject line of the message.

 

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Public Notice: Clean Water Act proposed rule for definition of "Waters of the U.S."

On April 21, 2014, the USEPA and the Corps of Engineers are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act, in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States. The proposed rule was developed to enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of “waters of the United States” protected under the Act.

Developing a final rule to provide the intended level of certainty and predictability, and minimizing the number of case-specific determinations, will require significant public involvement and engagement. Such involvement and engagement will allow the agencies to make categorical determinations of jurisdiction, in a manner that is consistent with the scientific body of information before the agencies – particularly on the category of waters known as “other waters.”

The agencies propose to define “waters of the United States” in section (a) of the proposed rule for all sections of the CWA to mean: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional “waters of the United States” by rule – no additional analysis would be required. The agencies emphasize that the categorical finding of jurisdiction for tributaries and adjacent waters was not based on the mere connection of a water body to downstream waters, but rather a determination that the nexus, alone or in combination with similarly situated waters in the region, is significant based on data, science, the CWA, and case law.

In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water, or the territorial seas. The proposed rule also offers a definition of significant nexus and explains how similarly situated “other waters” in the region should be identified.

The agencies propose to exclude specified waters from the definition of “waters of the United States” in section (b) of the proposed rule. The agencies propose no change to the exclusion for waste treatment systems designed consistent with the requirements of the CWA, no change to the exclusion for prior converted cropland, and no change to the regulatory status of water transfers. The agencies propose, for the first time, to exclude by regulation certain waters and features over which the agencies have generally not asserted CWA jurisdiction. Codifying these longstanding practices supports the agencies’ goals of providing greater clarity, certainty, and predictability for the regulated public. Waters and features that are determined to be excluded under section (b) of the proposed rule will not be “recaptured” as jurisdictional waters under any of the categories in the proposed rule under section (a).

The agencies’ decision on how best to address jurisdiction over “other waters” in the final rule will be informed by the final version of the EPA’s Office of Research and Development synthesis of published peer-reviewed scientific literature discussing the nature of connectivity and effects of streams and wetlands on downstream waters (U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, (Washington, D.C.: U.S. Environmental Protection Agency, 2013)) and other available scientific information.

The goal of the agencies is to ensure the regulatory definition is consistent with the CWA, as interpreted by the Supreme Court, and as supported by science, and to provide maximum clarity to the public, as the agencies work to fulfill the CWA’s objectives and policy to protect water quality, public health, and the environment.

National issues concerning the proposed rule:

Similar public notices are being published concurrently by other Corps division or district offices. The Federal Register notice is the public’s opportunity to provide comment on the proposed rule. For more information on the proposed rule, please visit: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationalNoticesandProgramInitiatives.aspx  

Submit comments on or before July 21, 2014.

Submit your comments, identified by Docket ID No. EPA–HQ–OW–2011–0880 by one of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
  • E-mail: ow-docket@epa.gov. Include EPA–HQ–OW–2011–0880 in the subject line of the message. 
  • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011–0880.
  • Hand-delivery / courier: Deliver your comments to: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20460, Attention Docket ID No. EPA–HQ–OW–2011–0880. Such deliveries are accepted only during the Docket’s normal hours of operation, which are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. Special arrangements should be made for deliveries of boxed information.
  • The telephone number for the Water Docket is 202–566–2426.

    For further information, contact:

Donna Downing, Office of Water (4502–T)

Environmental Protection Agency

1200 Pennsylvania Ave. NW

Washington, DC 20460

202–566–2428

CWAwaters@epa.gov

Stacey M. Jensen

Regulatory Community of Practice (CECW–CO–R)

U.S. Army Corps of Engineers

441 G St. NW

Washington, DC 20314

202–761–5856

USACE_CWA_Rule@usace.army.mil

 *Include the EPA Docket ID No. EPA-HQ-OW-2011-0880 in the subject line of the message.

 

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Monthly Federal-State interagency coordination / preapplication meetings

Issue Date: Feb. 4, 2014

The U.S. Army Corps of Engineers, Portland District (Corps), and the Oregon Department of State Lands (DSL) jointly welcome prospective Clean Water Act § 404 and Removal-Fill permit applicants to meet with the agencies as part of regularly scheduled interagency pre-application meetings.  The meetings supplement existing pre-application coordination led by the Corps and DSL.

The pre-application process is intended for non-routine permit evaluations that may be complex or controversial in nature. The intent of the meetings is to provide meaningful comment and feedback to prospective applicants early in the permitting process, to help them prepare permit applications.

On the third Wednesday of each month, from 1 to 2 p.m, participating state and federal agencies will meet with a prospective applicant to discuss their proposed project, provide feedback, and share information.

The meetings are designed to assess draft information, and prospective attendees are asked to provide basic project information, in the form of responses to a standard set of questions, at least two weeks prior to the meeting.

Meeting locations and dates for 2014

  • Feb. 19– Portland, 333 SW 1st Ave., 8th floor (visitor check-in on 10th floor)
  • March 19 – Portland, 805 SW Broadway, Ste. 500
  • April 16 – Portland, 2020 SW 4th Ave., Ste. 400
  • May 21 – Portland, 333 SW 1st Ave., 8th floor (visitor check-in on 10th floor)
  • June 18 – Portland, 805 SW Broadway, Ste. 500
  • July 16 – Portland, 2020 SW 4th Ave., Ste. 400
  • Aug. 20 – Portland, 333 SW 1st Ave., 8th floor (visitor check-in on 10th floor)
  • Sept. 17 – Portland, 805 SW Broadway, Ste. 500
  • Oct. 15 – Portland, 2020 SW 4th Ave., Ste. 400
  • Nov. 19 – Portland, 333 SW 1st Ave., 8th floor (visitor check-in on 10th floor)
  • Dec. 17 – Portland, 805 SW Broadway, Ste. 500

Note: Meetings may be relocated to Salem, Eugene, or elsewhere if appropriate for specific prospective projects. 
Screening tools and pre-meeting information
Prospective applicants interested in a formal pre-application meeting should work with their contacts at the Corps and DSL and review online project screening tools before requesting time at a monthly agency meeting.

The screening tools, known as the matrix and accompanying matrix user’s guide, are available on the Oregon Department of State Lands website: http://oregon.gov/dsl/PERMITS/Pages/Removal-Fill-Pre-Application-Meetings.aspx

The matrix will help prospective applicants assess if a pre-application meeting will be beneficial to their project development. Even if the applicant opts to not have a formal pre-app meeting, information in the matrix and user’s guide may be helpful for any project potentially needing a § 404 permit (and associated § 401 Water Quality Certification) or a Removal-Fill Permit, and a less formal pre-application meeting may still be appropriate.

The screening tools are intended primarily for use by large-scale, controversial or major projects. The tools are available for any potential applicant or agency staff person, and can be scaled down to assess the risks associated with less complex or less controversial projects.

Participating agencies

  • U.S. Army Corps of Engineers – Portland District
  • Oregon Department of State Lands
  • Oregon Department of Environmental Quality
  • U.S. EPA – Region 10 Oregon Operations Office
  • NOAA National Marine Fisheries Service
  • U.S. Fish and Wildlife Service
  • Oregon Department of Geology and Mineral Industries
  • Oregon Department of Fish and Wildlife
  • Oregon Department of Land Conservation and Development

For more information, please contact:
Bill Ryan, Oregon Department of State Lands, Wetlands and Waterways Division
Phone: 503-986-5259 (Salem)
Email: Bill.Ryan@dsl.state.or.us

Michael Turaski, U.S. Army Corps of Engineers, Portland District
Phone: 503-808-4381
Email: Michael.R.Turaski@usace.army.mil
Counties: Baker, Clackamas, Clatsop, Columbia, Gilliam, Grant, Hood River, Jefferson, Lincoln, Malheur, Marion, Morrow, Multnomah, Polk, Sherman, Tillamook, Umatilla, Union, Wallowa, Wasco, Washington, Wheeler, Yamhill

Teena Monical, U.S. Army Corps of Engineers, Portland District
Phone: 541-465-6877
Email: Teena.G.Monical@usace.army.mil
Counties: Linn, Benton, Lane, Coos, Crook, Curry, Douglas, Jackson, Josephine, Deschutes, Klamath, Lake, Harney

Training guide and video

Monthly meetings

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Issued:  Jan. 3, 2013

The U.S. Army Corps of Engineers, Portland District and the Oregon Department of State Lands jointly welcome prospective Clean Water Act § 404 and Removal-Fill permit applicants to meet for a regularly scheduled interagency pre-application meeting. This meeting supplements existing pre-application Corps and DSL coordination.

 

The pre-application process is intended for non-routine permit evaluations that may be complex or controversial. The meeting provides the opportunity for meaningful comment and feedback to prospective applicants early in the permitting process.

 

Participating state and federal agencies will meet from 1 to 3 p.m. on the third Wednesday of each month. The agenda reserves approximately one hour for prospective applicants to solicit feedback and present information to the assembled agencies.

 

The meetings are designed to assess draft information, and prospective attendees are asked to provide basic project information in the form of responses to a standard set of input questions at least two weeks prior to the meeting.

Locations and dates aren't yet established for 2014.

Note: Meetings may be relocated to Salem, Eugene or elsewhere if appropriate for specific prospective projects. 

Screening tools and pre-meeting information

Prospective applicants interested in a formal pre-application meeting should work with their points of contact at the Corps and DSL and review online project screening tools prior to requesting time at a monthly agency meeting.

 

The screening tools, known as the matrix and accompanying matrix user’s guide, are available at: http://oregon.gov/dsl/PERMITS/Pages/Removal-Fill-Pre-Application-Meetings.aspx

 

The matrix helps prospective applicants assess the potential value of a pre-application meeting to their project development. Even if the applicant opts to not have a formal pre-app meeting, the matrix and user’s guide may be helpful for any project potentially needing a § 404 permit (and associated § 401 Water Quality Certification) or a Removal-Fill Permit.

 

The screening tools are intended primarily for use by large-scale, controversial or major projects. The tools are available for anyone to use, and can be scaled down to assess the risks associated with less complex or less controversial projects.

For more information, please contact:

Bill Ryan, Oregon Dept. of State Lands, Wetlands and Waterways Div.

503-986-5259  Bill.Ryan@dsl.state.or.us

 

Michael Turaski, U.S. Army Corps of Engineers, Portland District

503-808-4381  Michael.R.Turaski@usace.army.mil

Counties: Baker, Clackamas, Clatsop, Columbia, Gilliam, Grant, Hood River, Jefferson, Lincoln, Malheur, Marion, Morrow, Multnomah, Polk, Sherman, Tillamook, Umatilla, Union, Wallowa, Wasco, Washington, Wheeler, Yamhill

 

Teena Monical, U.S. Army Corps of Engineers, Portland District

541-465-6877  Teena.G.Monical@usace.army.mil

Counties: Linn, Benton, Lane, Coos, Crook, Curry, Douglas, Jackson, Josephine, Deschutes, Klamath, Lake, Harney

Public Notices by Year

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NWP-2007-832-4 - 7/28/2014: Tom Taylor is the Regulatory point-of-contact for this updated permit application from the Port of Newport for work in the Yaquina Bay and estuary, in Newport, Ore.
Expiration date: 8/11/2014


NWP-2005-430-2 - 7/18/2014: Benny Dean Jr. is the Regulatory point-of-contact for this permit application from Hayden Homes, LLC, for work in wetlands in Veneta, Ore.
Expiration date: 8/16/2014


NWP-2014-146 - 6/25/2014: Heather Markway is the Regulatory point-of-contact for this permit application from the Fife Group, LLC, for work in emergent wetlands in Dallas, Ore.
Expiration date: 7/25/2014


NWP-1997-958-1 - 6/23/2014: Andrea Wagner is the Regulatory point-of-contact for this permit application from Lane County for work in wetlands adjacent to Camas Swale Creek in Goshen, Ore.
Expiration date: 7/23/2014


NWP-2014-195 - 6/19/2014: Chelsea Bowman is the Regulatory point-of-contact for this permit application from the City of Salem Public Works for work on the North Santiam River near Stayton, Ore.
Expiration date: 7/21/2014


NWP-2013-240 - 6/17/2014: Benny Dean is the Regulatory point-of-contact for this permit application from Bonneville Power Administration. The proposed project is a corridor project impacting wetlands and waterways in Lane, Douglas and Coos counties, Oregon.
Expiration date: 7/1/2014


NWP-2014-207 - 6/10/2014: Kristen Hafer is the Regulatory point-of-contact for this permit application from James Koch for work in the Columbia River at River Mile 141.3 near Cascade Locks, Ore.
Expiration date: 7/10/2014

ATTACHMENTS:  


NWP-2007-729 - 6/9/2014: Jaimee Davis is the Regulatory point-of-contact for this permit application from Warrenton Fiber Company for work in the Columbia River at the Tansy Point Chip Dock, in Warrenton, Ore.
Expiration date: 7/9/2014


NWP-2013-83 - 6/4/2014: Carol Franson is the Regulatory point-of-contact for this permit application from the Bend Park and Recreation District for work at River Mile 167.5 of the Deschutes River in Bend, Ore.
Expiration date: 7/3/2014


2007-195-7 - 6/2/2014: Shelly Lynch is the Regulatory point-of-contact for this amendment to the original Public Notice issued Sept. 10, 2013, for a Regulatory permit application from Vigor Industrial, LLC, for work at River Mile 8.2 on the Willamette River in Portland, Ore.
Expiration date: 6/17/2014

ATTACHMENTS:  


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