About, Face! Army Corps Reverses Stance on AJD Validity
In a little-known announcement on January 5, 2022 regarding the vacatur of the Navigable Waters Protection Rule (NWPR), the U.S. Army Corps of Engineers stated that they “will not rely on an AJD [approved jurisdictional determination] issued under the NWPR in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the pre-2015 regulatory regime).” This decision puts at peril any standalone AJDs that were issued under the NWPR that would have been relied upon to proceed with a future permit action, particularly those that had hoped to escape federal Section 106 or endangered and threatened species review.
Nationwide Permits: 40 Existing and 1 New to be Effective February 2022
On December 27, 2021, the U.S. Army Corps of Engineers published the Nationwide Permit Final Rule in the Federal Register to reissue 40 existing Nationwide Permits (NWPs) – originally issued in 2017 – and issue one new NWP. These 41 NWPs will be effective on February 25, 2022 and have a four-year lifespan, expiring on March 14, 2026.
If your project is authorized under one of these permits and is currently under construction, or is under contract to commence prior to February 24, 2022, your project qualifies for a one-year extension (until February 24, 2023) to complete the project under the existing authorization. All other NWP-eligible projects will require authorization under a new permit; WSSI is prepared to help.
Maryland Stream Use I and Use IV Time of Year Restrictions Begin March 1
Every waterway in Maryland is protected by restrictions on instream work to help minimize impacts to aquatic habitats during construction projects. The Time of Year Restrictions (TOYRs) for Use I (Nontidal Streams) and Use IV (Recreational Trout Waters) streams both begin March 1 and extend until June 15 and May 31, respectively. The Maryland Department of the Environment (MDE) enforces these restrictions by routinely visiting job sites, and will shut down those projects that are in violation.
