Hoeven: Army Corps Needs to Make New Permits Compliant with Court Stay on Waters of the U.S. Rule

Senator Calls on Assistant Secretary Darcy to Reissue Nationwide Permits without Using Contested WOTUS Definitions

WASHINGTON – Senator John Hoeven today called on the U.S. Army Corps of Engineers to comply with the nationwide stay on the implementation of the proposed Waters of the U.S. (WOTUS) rule by the U.S. Court of Appeals for the Sixth Circuit. Last month, the Corps issued proposed revisions to the standards for Nationwide Permits (NWP), a permit under the Clean Water Act that provides a streamlined process for projects on private lands that have minimal impact on U.S. waters and which are up for renewal in March 2017. NWPs allow private landowners, including farmers and ranchers, to avoid the costly and burdensome process for individual permits, which can delay projects for hundreds of days.

In its revised standards, the Corps makes reference to new WOTUS definitions, including definitions for what constitutes a “waterbody,” “non-tidal wetland” and “ordinary high water mark.” In his letter to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works, Hoeven stressed that these definitions are still under judicial review, and their inclusion in the proposed revision violates the court’s stay of the rule.

“The Army Corps must comply in full with the Sixth Circuit’s order,” Hoeven said. “NWPs are valuable tool for our farmers, ranchers and small businesses, allowing them to move forward on projects on their land that have only a minor effect of U.S. water, while avoiding the extra costs and delays that come with individual permits. The inclusion of definitions from the Waters of the U.S. rule violates the spirit of the court’s stay, and I am urging Assistant Secretary Darcy to reissue the NWPs without these definitions and respect the court’s review of the rule.”

The EPA released the proposed Waters of the U.S. regulation on April 21, 2014 and issued its final rule last year. It includes broad new definitions of the scope of “waters of the United States” that fall under the jurisdiction of the CWA. If implemented, this expansion of the EPA’s regulatory authority would have significant economic impacts for property owners who would face new federal permits, compliance costs and threats of fines.

As a member of the Senate Appropriations Committee, Hoeven continues working to prevent and defund the implementation of the Waters of the U.S. rule. Previously, Hoeven successfully defunded the EPA’s Interpretive Rule for the Waters of the U.S. for Fiscal Year 2016 to preserve the exemption under the Clean Water Act for normal agricultural activities like plowing, seeding and minor drainage.

At the same time, Hoeven continues working with his colleagues to repeal the rule. In November, Congress passed a Resolution of Disapproval cosponsored by Hoeven for the Waters of the U.S. Despite passage, however, the measure was vetoed by President Obama in January.

The full text of Hoeven’s letter can be found here.