The Waters Advocacy Coalition (WAC) submitted comments to seek clarification on a new proposal by the U.S. Army Corps of Engineers (“the Corps”) that could impact the scope of nationwide permits (NWPs) used to ensure compliance with the Clean Water Act. ABC is a member of the coalition.

The Corps’ proposed rule, issued June 1, is formally titled the Proposal to Reissue and Modify Nationwide Permits. In its comments, the coalition argued that the Corps failed to adequately analyze a critical component of the NWP program—the scope of “waters of the United States” subject to the Corps’ jurisdiction.

The coalition also cited the pending litigation against the Waters of the United States (WOTUS) rule and the nationwide stay of the rule granted by the U.S. Court of Appeals for the Sixth Circuit in October 2015. “Due to the pending litigation and nationwide stay of the WOTUS Rule, the Corps should clarify that the WOTUS Rule’s terms, definitions and key concepts will not apply to the reissued NWPs, and should remove citations to stayed regulations,” the coalition said. “If the WOTUS Rule is implemented, WAC believes it will have significant implications for the NWP program, and the Corps will need to revise the NWPs to maintain the streamlined process envisioned by Congress.”

WAC is supportive of the NWPs program, but is concerned that the current stay of the WOTUS rule along with the ongoing litigation will cause uncertainty for contractors that are granted NWPs. Additionally, if the WOTUS rule is implemented, WAC believes the Corps needs to address the impact the rule will have on the entire NWP program.