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Rules Changing for Clean Water Act Section 404 Nationwide Permits

By: Paul S. Weiland

On March 12, 2007, the United States Army Corps of Engineers ("Corps") published a final notice in the Federal Register reissuing all existing Clean Water Act Section 404 Nationwide Permits ("NWPs"), six new NWPs, two general conditions, and 13 new definitions.

The effective date for the final rule, including the NWPs, is March 19, 2007. Activities authorized by the previous set of NWPs, which were issued on January 15, 2002, that have commenced or are under contract to commence by March 18, 2007, must be completed by March 18, 2008. Any applicant for an NWP that does not obtain a permit before March 19, 2007, must comply with the requirements described in the final rule.

Not later than May 11, 2007 (i.e., 60 days from the date of publication of the final rule), States, Indian Tribes, and EPA must complete the Clean Water Act Section 401 water quality certification process and coastal states must complete the Coastal Zone Management Act consistency determination process. Through these processes, the relevant regulatory bodies may pre-certify certain classes of activities so that it is not necessary to obtain an individual water quality certification or consistency determination for such activities. In the interim, for all activities, use of a NWP is contingent upon obtaining: (1) an individual water quality certification or waiver under the Clean Water Act and (2) to the extent applicable, an individual consistency determination or presumption of Coastal Zone Management Act concurrence under that Act.

Among other changes, the Corps created a consolidated NWP for all forms of residential development, denominated as NWP 29. With respect to both NWP 29 (residential developments) and 39 (commercial and institutional developments), the Corps revised 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 ephemeral streams "will help ensure that the applicable NWPs will authorize activities with minimal individual and cumulative adverse effects on the aquatic environment." NWPs 29 and 39 allow district engineers to waive the 300 linear foot limit under certain circumstances. As was the case with the 2002 NWPs, a waiver is not available for the loss of greater than 300 linear feet of perennial streams.

The federal government has not, to date, issued any regulation or guidance interpreting Rapanos v. United States, 126 S. Ct. 2208 (2006). In the final rule, the federal government sidesteps the implications of this Supreme Court decision and states that regulatory jurisdiction over intermittent and ephemeral waterbodies "will be determined on a case-by-case basis by district engineers, in accordance with current and future regulations and guidance."

To view the Corps' proposal in its entiretly, click here.

Paul Weiland 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, Endangered Species Act and National Environmental Policy 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

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