Wetland Permitting in Virginia Made Murky by New Federal Rules and Corps District Staffing Shortages

Summary by John Brooks - APEX

 

New WOTUS definition has been outlined.  Relatively permanent waters and those waters connected by a significant nexus is the key, as most of the other larger areas of jurisdiction remain the same (Traditional Navigable Waters, etc.).  It is essentially the 1986 rule with the key distinctions (by the way these are the same key distinctions that the 2015 Rule had at its core). 
 
New NWPs will be issued Feb 25, 2022, which may help move things through the backlog of Corps items, except for the next key point. 
 
Key staffing shortages at USACOE districts (Norfolk is specifically mentioned; however, from my experience other districts are in the same situation), which is causing significant delays in JD issuance, permit issuance, and mitigation banking approvals.  This in turn is causing delays and increases in pricing on compensatory mitigation.  And if that was not enough, the next COE/EPA move will make your heads spin. 
 
On January 5, 2022, in the USACOE statement regarding the vacatur of the National Wetland Protection Rule (NWPR), it was stated that the USACOE “will not rely on an AJD (approve jurisdictional determination) issued under the NWPR in making new permit decisions.  The Corps will make new permit decisions pursuant the currently applicable regulatory regime” (i.e., the pre-2015 regulatory regime).  This decision negates the many AJDs that were issued during the effective years of the NWPR.  Typically, the COE issues these for 5 years.  The USACOE had previously stated that they would honor the AJDs issued under the NWPR for the 5-year issuance term.  This information was only provided as an announcement and not guidance.  The NWPR dates are June 22,2020 to August 30, 2021. 
 
The full William Mullen Report can be found HERE.