On March 12, 2007, the U.S. Army Corps of Engineers released new and modified Nationwide Permits (NWP), which authorize dredge and fill activities that will cause minimal individual and cumulative adverse effects. The revised NWPs include modified versions of several of the existing 43 NWPs, along with 6 new NWPs. The NWPs include new and revised definitions and will be subject to 28 revised General Conditions. (Final notice submitted to the Federal Register on March 12, 2007) The new permits take effect on March 19, 2007 and will expire on March 18, 2012. Under a grandfathering provision, projects that have commenced or are under contract to commence under prior NWPs will have until March 18, 2008 to complete the activity under the terms and conditions of those NWPs. In addition, the Los Angeles, Sacramento, and San Francisco Army Corps Districts have published notices of proposed regional conditions that could significantly change the requirements of obtaining NWP coverage in those areas. (See proposed regional conditions for Sacramento and Los Angeles.) These regional conditions are still under consideration and no final regional conditions have been issued. Also, the State Water Resources Control Board and Regional Water Quality Control Boards will consider whether any or all of the NWPs should be certified under Section 401 or whether individual certification for each project authorized under a NWP will be required.
The revised NWPs are intended to simplify and clarify the format and language of the previous permits, although several substantive changes have been made, as further described in this article.
Revisions to Existing NWPs
Many of the existing NWPs were changed slightly to clarify language contained in the permits. Specifically, however, the Army Corps retained all of the acreage limits for the current NWPs.
A few notable substantive changes include:
- The addition of protection for ephemeral streams, in particular for NWP 39 (as revised, “Commercial, and Institutional Developments”), including a 300-linear foot limit. With these revisions, several of the NWPs will include linear foot limits for impacts to perennial, intermittent, and ephemeral streams.
- The consolidation of all residential housing projects, whether single family or multi-family, under a revised NWP 29 (previously “Single Family Housing”). Previously, single family housing projects were authorized by both NWP 29, for activities in wetlands adjacent to tidal waters (limited to 1/4 acre) and NWP 39 (“Residential, Commercial, and Institutional Developments”), for activities in non-tidal waters (limited to 1/2 acre). To resolve this inconsistency, the Army Corps has combined coverage for all residential projects into NWP 29 and has eliminated coverage for projects in wetlands adjacent to tidal waters. Under the new NWP 29, all housing projects can seek coverage for activities limited to 1/2 acre that occur in wetlands adjacent to non-tidal waters. Pre-construction notification will continue to apply for all activities covered under the revised NWP 29.
- The modification to several definitions for the NWPs and the addition of several definitions such as “Discharge,” “Ordinary High Water Mark,” “Practicable,” and “Pre-construction notification.”
Six New Nationwide Permits
The Army Corps has adopted six new NWPs:
- NWP 45, “Repair of Uplands Damaged by Discrete Events,” which covers the repair of uplands damaged by storms and other discrete events. NWP 45, which is intended to clarify NWP 3, will cover those activities that are not emergencies. Emergencies will still be covered under NWP 3.
- NWP 46, “Discharges in Ditches,” which covers activities in ditches and canals that provide few aquatic resource functions.
- NWP 47, “Pipeline Safety Program Designated Time Sensitive Inspections and Repairs,” which covers repairs in accordance with the Pipeline and Hazardous Materials Safety Administration’s Pipeline Safety Program.
- NWP 48, “Existing Commercial Shellfish Aquaculture Activities,” which authorizes nationwide ongoing shellfish aquaculture activities.
- NWP 49, “Coal Remining Activities,” which authorizes activities associated with remining and reclamation of previously coal mined lands.
- NWP 50, “Underground Coal Mining Activities,” which authorizes activities associated with coal mining involving underground disturbances.
In addition, the Army Corps has reorganized, renumbered, and revised several of the General Conditions that apply to the NWPs. Notably, the Army Corps modified General Condition 10 “Fills Within 100-Year Floodplains,” which previously prohibited the use of several NWPs within mapped 100-year floodplains. Under the modified General Condition 10, activities must simply comply with applicable FEMA-approved state or local floodplain management requirements.
Substantively, one new General Condition has been added and one has been removed. A new General Condition 25, “Transfer of Nationwide Permit Verifications,” authorizes the transfer of a NWP Verification, with all associated rights and liabilities (including mitigation), when a property is sold by the original permittee to a new owner. Also, General Condition 27 (“Construction Period”) has been removed based on a determination that it failed to place an appropriate 5-year limit on the permits.
In addition, the Los Angeles, Sacramento, and San Francisco districts have published notices of proposed regional conditions that will suspend, revoke or modify some or all of the proposed reissued and new NWPs. These proposed regional conditions, which have not yet been issued, could significantly change the requirements of obtaining NWP coverage in those areas. The proposed regional conditions are available online for the Sacramento and Los Angeles districts.
For more information please contact Ella Foley-Gannon and Julie Austin. Ella Foley Gannon is a partner of the Land Use and the Natural Resources Environmental Practice Group in the firm’s San Francisco Office. Julie Austin is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office.