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Corps Issues Nationwide Permits Proposal

By: Mary Lynn K. Coffee, Paul S. Weiland
10/02/06

On September 26, 2006 the United States Army Corps of Engineers ("Corps") issued notice in the Federal Register of its Proposal to Reissue and Modify the Clean Water Act Section 404 Nationwide Permits ("NWP Proposal").  The 2002 Nationwide Permits ("NWPs") expire on March 18, 2007.  In the event that the Corps does not reissue the NWPs prior to the expiration of the existing NWPs, regulated parties will be unable to secure a NWP beginning on March 18, 2007 and until such time as the Corps completes the process of reissuing the NWPs.

The Corps' NWP Proposal includes some important changes for the existing NWPs, including the modification of a number of the general conditions and definitions applicable to those NWPs. 

The NWP Proposal also includes six new NWPs for the following activities:

  • emergency repair activities;
  • discharges into ditches and canals;
  • pipeline safety and repair activities
  • commercial shellfish aquaculture activities
  • coal remining activities; and
  • underground coal mining activities.

With respect to the NWPs covering residential and commercial development, the Corps is proposing to combine NWP 29 (currently covers single-unit residential development) with the provisions of NWP 39 relating to multiple-unit residential development into a single NWP that authorizes both single-unit residential development and multiple-unit residential development. NWP 39 would be modified to only authorize commercial and institutional development. 

With respect to both NWP 29 and 39, the Corps proposes to revise the 300 linear foot limit for the loss of stream bed by extending it to ephemeral streams.  The 2002 NWPs applied that limit only to perennial and intermittent streams.  According to the Corps, applying the linear foot limit to losses of ephemeral streams will "simplify the administration of the NWP program" because it is often difficult to distinguish between ephemeral and intermittent streams.  The NWP Proposal allows district engineers to waive the 300 linear foot limit, "if the loss of intermittent or ephemeral stream bed will have minimal individual and cumulative adverse effects on the aquatic environment."  As was the case with the 2002 NWPs, a waiver is not available for the loss of greater than 300 linear feet of perennial stream.  In addition, the NWP Proposal calls for pre-construction notifications ("PCNs") for all activities authorized under NWP 29 and 39.

Important Changes to the General Conditions and Definitions include:

  • Addition of a General Condition allowing the transfer of a NWP verification to the new owner of a project site if certain conditions and procedures are followed.
  • Eliminating the General Condition that allowed a district engineer to place any completion date on a NWP verification.
  • Establishing a 1/10 acre threshold for compensatory mitigation requirements for the Mitigation General Condition.  Under the NWP Proposal, if a project causes losses below this threshold the district engineer still may determine that compensatory mitigation is required on a case-by-case basis.
  • Adding a provision in the Water Quality General Condition that provides district engineers with the authority to require water quality management measures to ensure that the authorized activity does not result in more than "minimal degradation" of water quality.
  • Adding a provision to the Endangered Species General Condition that states that no activity which may affect a listed species or critical habitat is authorized unless Section 7 consultation has been completed. 
  • Amending the definition of "loss of waters of the United States" to include filling or excavating of ephemeral stream beds when determining whether proposed activities exceed the threshold limits of the NWPs.
  • Adding a sentence to the definition of "waterbody" that provides that an ordinary high water mark (OHWM) is a "line on the shore established by the fluctuations of water and indicated by physical characteristics, or by other appropriate means that consider the characteristics of the surrounding areas."  In addition, this definition will be modified to provide that a waterbody and its adjacent wetlands are to be considered together as a single aquatic unit.   

The Corps has not, to date, issued either a proposed rule or guidance interpreting Rapanos v. United States, 126 S. Ct. 2208 (2006).  While the Federal Register notice references Rapanos, there is no indication that any changes to the permits or permit conditions were made in response to the Court's decision.  The deadline for submitting comments on the Corps' NWP Proposal is November 27, 2006. 

To view the Corps' proposal in its entirety click here.

 

Mary Lynn K. Coffee is a partner in Nossaman's Irvine office.  She has extensive experience in compliance with, and permitting and approvals for development projects under local, state and federal resource protection laws, including the federal Clean Water Act (Sections 401, 402 and 404), the California Porter-Cologne Water Quality Act and the state streambed alteration provisions of the California Fish and Game Code.  In this role, she has particular expertise in the development of construction and post-construction surface water quality compliance programs for existing and new real estate developments.  She can be reached at (949) 833-7800 or mcoffee@nossaman.com.


Paul S. Weiland is an assoicate in Nossaman's Irvine office.  He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Clean Water Act and Endangered Species Act.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or pweiland@nossaman.com.

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